1.20.2011

Ninth Circuit Notes Split Re Whether A Courtroom Appearance Raises A Public Employee's Testimony To A Public Concern

Per Clairmont v. Sound Mental Health, --- F.3d ----, 2011 WL 149371 (9th Cir. Jan. 19, 2011):

Clairmont argues that, regardless of the subject matter, truthful testimony given pursuant to a subpoena should be considered per se a matter of public concern. As we detailed in Alpha Energy Savers, our sister circuits are split on “whether the context of a courtroom appearance raises a public employee witness's testimony to the level of public concern, regardless of its content.” 381 F.3d at 926 n. 6. There, we declined to decide whether a public employee's testimony was inherently a matter of public concern. Id.

So too here, we need not decide whether truthful testimony given pursuant to a subpoena is per se a matter of public concern because in this case, the content, form, and context of Clairmont's testimony establish that his speech related to a matter of public concern.

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