Sisinia Pro v. Ronald Donatucci. Ronald Donatucci, Register of Wills

ROTH, Circuit Judge,

dissenting:

Sisinia Pro alleges that she was fired because she complied with a subpoena. This would clearly be wrong, and, if so, I have no doubt that Pro can establish some viable claim. In my opinion, however, she cannot establish the claim on which she chose to sue, a cause of action under 42 U.S.C. § 1983 for a violation of her First Amendment rights. The majority elects to save Pro’s claim by constitutionalizing compliance with a subpoena. Under this formulation, simple obedience to the law becomes free speech. I respectfully dissent.

1.

The crux of my difficulty with the majority’s decision turns on one simple point: Compliance with a subpoena is not speech. In light of this basic fact, the complex and sophisticated arguments of the majority all come to naught. A free speech claim depends on speech, and there was none in this case.

*1293 The record makes clear that Pro never testified. She simply appeared. As a result, there was no speech in its traditional, linguistic sense. This, of course, is not dispositive. Like Nereus, speech in its constitutional sense can take many forms. See, e.g., Texas v. Johnson, 491 U.S. 397 , 109 S.Ct. 2538 , 105 L.Ed.2d 342 (1989) (burning American flag); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969) (wearing black armbands); United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968) (burning draft registration card). Because of these often elusive permutations, whether a given activity constitutes speech represents a threshold question in every First Amendment case. The issue may sometimes be sidestepped — the parties may agree to treat certain conduct as speech, or a court may assume that certain conduct is speech — but the question is always there. See Texas v. Johnson, 491 U.S. 397, 403 , 109 S.Ct. 2533, 2538 , 105 L.Ed.2d 342 (1989) (“We must first determine whether Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction.”). I am confident that under the principles established by the Supreme Court, compliance with a subpoena is not speech.

In approaching the First Amendment, the Supreme Court has consistently emphasized the expressive, communicative dimension of speech. The Court’s ringing descriptions of the First Amendment’s role and purpose focus on this aspect. See, e.g., Connick v. Myers, 461 U.S. 138, 145 , 103 S.Ct. 1684, 1689 , 75 L.Ed.2d 708 (1983) (“The First Amendment Vas fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ” (citations omitted, emphasis added)); Pickering v. Board of Educ., 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734 , 20 L.Ed.2d 811 (1968) (the public’s interest in “free and uninhibited debate on matters of public importance” is “the core value of the Free Speech Clause” (emphasis added)). The Court’s recent applications of the Amendment to concrete situations likewise stress this element. See, e.g., Hurley v. Irisfa-American Gay, Lesbian & Bisexual Group of Boston, — U.S. -, -, 115 S.Ct. 2338, 2348 , 132 L.Ed.2d 487 (1995) (holding South Boston parade “expressive” and hence state law requiring inclusion of particular message violated parade-organizer’s right of free speech); United States v. National Treasury Employees Union, — U.S. -, -, 115 S.Ct. 1003, 1012 , 130 L.Ed.2d 964 (1995) (noting that federal law prohibiting honoraria burdened “expressive activities” of government employees). Throughout First Amendment jurisprudence, expression and communication are the crucial attributes of speech. Put simply, “[t]he scope of the First Amendment is determined by the content of expressive activity.” R.A.V. v. City of St. Paul, 505 U.S. 377, 420 , 112 S.Ct. 2538, 2563 , 120 L.Ed.2d 305 (1992) (Stevens, J., concurring).

Nowhere is this stress on expression and communication more clear than in the Court’s approach to speech that falls outside the traditional domain of the spoken or written word. The Amendment’s purview extends not to conduct in general, but rather to expressive conduct. See R.A.V., 505 U.S. 377, 382 , 112 S.Ct. 2538, 2542 , 120 L.Ed.2d 305 (1992) (“The First Amendment generally prevents government from proscribing speech, or even expressive conduct.”) (citations omitted, emphasis added); Smith v. Goguen, 415 U.S. 566, 586 , 94 S.Ct. 1242, 1253 , 39 L.Ed.2d 605 (1974) (“Th[e First] Amendment, of course, applies to speech and not to conduct without substantial communicative intent and impact.”) (White, J., concurring). The classic examples of conduct-as-speech all contain patently expressive messages. See Texas v. Johnson, 491 U.S. 397, 109 , S.Ct. 2533, 105 L.Ed.2d 342 (1989) (burning American flag to protest Republican nomination of Ronald Reagan); Tinker, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969) (wearing black armband to protest American involvement in Vietnam); United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968) (burning draft registration card to protest Vietnam war); Brown v. Louisiana, 383 U.S. 131 , 86 S.Ct. 719 , 15 L.Ed.2d 637 (1966) (protesting segregation through sit-in); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 , 63 S.Ct. *1294 1178 , 87 L.Ed. 1628 (1943) (refusing to salute flag where salute symbolized adherence to set of political beliefs); Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532 , 75 L.Ed. 1117 (1931) (displaying red flag to protest organized government).

Some basic communicative dimension is thus a prerequisite for conduct to qualify as speech. But the Supreme Court has gone further: Not all conduct that is expressive constitutes speech in its constitutional sense. The Court made this clear from the outset in the seminal case of United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968). While recognizing the conceptual validity of symbolic speech, the Court rejected in the same breath the suggestion that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Id. at 376 , 88 S.Ct. at 1678; see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570 , 111 S.Ct. 2456, 2462 , 115 L.Ed.2d 504 (1991) (finding insufficient the expressive content of public nudity; quoting O’Brien, 391 U.S. at 376, 88 S.Ct. at 1678). As the Court more recently observed, “It is possible to find some kernel of expression in almost every activity a person undertakes — for example walking down the street or meeting one’s friends at the shopping mall — but such a kernel is not sufficient to bring the activity within the protections of the First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25 , 109 S.Ct. 1591, 1595 , 104 L.Ed.2d 18 (1989) (finding insufficient the expressive content of dance-hall gatherings).

The Court’s per curiam decision in Spence v. Washington, 418 U.S. 405 , 94 S.Ct. 2727 , 41 L.Ed.2d 842 (1974) has emerged as the primary guidepost in determining whether conduct having a communicative dimension is sufficiently expressive to qualify as speech. The conduct in Spence entailed the public display of an American flag emblazoned with a peace sign. Id. at 406 , 94 S.Ct. at 2728. Even though the state conceded the point, the Court took pains to explain that this act was expressive. It looked to the “communicative connotations” of the particular action or symbol, the context in which the activity occurred, and the intent of the speaker in delivering the message. Id. at 410, 94 S.Ct. at 2730. For the flag display, these factors allowed the court to conclude that “in the surrounding circumstances, the likelihood was great that the message would be understood by those who viewed it.” Id. at 411, 94 S.Ct. at 2730. In other words, the message had clear communicative content of a constitutional magnitude.

The First Amendment tests crafted by this court have recognized and applied these principles. In Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 85 , 126 L.Ed.2d 53 (1993), we relied on Spence to hold that expressive conduct will only constitute speech where there is a “[great] likelihood ... that the message would be understood.” Id. at 995 (quoting Spence, 418 U.S. at 410-11 , 94 S.Ct. at 2730 ). We also relied on additional language in Spence to require “[a]n intent to convey a particularized message.” Id. This established a relatively high standard for communicative conduct. After the Supreme Court’s decision in Hurley dispensed with the latter requirement, — U.S. at -, 115 S.Ct. at 2345, we set out a modified test for expressive conduct that retained the all-important communicative dimension. In Troster v. Pennsylvania State Dept. of Corrections, 65 F.3d 1086 (3d Cir.1995), ce rt. denied, — U.S. -, 116 S.Ct. 708 , 133 L.Ed.2d 663 (1996), we adopted as our standard “whether, considering the nature of the activity, combined with the factual context and environment in which it was undertaken, we are led to the conclusion that the activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Id. at 1090 (emphasis added, citation omitted). 1 Consistent with Supreme *1295 Court precedent, conduct will only qualify as speech if it contains a degree of expression that merits constitutional protection.

Turning to the case at bar with these principles in mind, I find no communicative dimension in the act of complying with a subpoena. Unlike the decorated flag in Spence , compliance with a subpoena has no “communicative connotations.” 418 U.S. at 410 , 94 S.Ct. at 2730. It is impossible to draw any meaningful inference from the act. Compliance also lacks Spence’s element of context. Obeying a subpoena is a typical occurrence in everything from a garden variety hearing to a media-event trial. Compliance itself carries no expressive context. Finally, compliance lacks Spence’s element of intent. A person who obeys the command of a subpoena is merely obeying the law. She fulfills a requirement that society has imposed on her. She has not made any effort to communicate. She has delivered no message. No speech has yet occurred.

This should be dispositive. No communication means no speech. But even if I follow the Supreme Court’s suggestion and search for the “kernel of expression [present] in almost every activity a person undertakes,” City of Dallas, 490 U.S. at 25 , 109 S.Ct. at 1595 , I become more convinced. It might be argued that there are certain minimal communications that compliance with a subpoena could convey. Compliance could indicate respect for the law or deference to the court system. It could indicate recognition of the obligations of citizenship. Such messages are quintessentially generic. Any party, complying with any law, could be interpreted as expressing similar views. If these are the only messages that compliance with a subpoena carries, then it once again carries no message at all. Its message silently blends into the background of norms in-which society functions.

Alternatively, in slightly more persuasive terms, it might be argued that compliance with a subpoena takes on some vicarious tinge of content based on the interests of the party that issues it. Compliance could also suggest a desire to testify on behalf of that party. Such arguments are equally generic and even more ambiguous. Because compliance with a subpoena is mandatory, compliance could just as easily indicate support for the opponent’s cause that is not strong enough to overcome the disincentive of contempt sanctions. Once again, compliance carries no cognizable message.

Nevertheless, assuming arguendo that these messages were cognizable, I conclude from our precedents that the communications fall far short of constitutional magnitude. We have not hesitated to deny the constitutional appellation “speech” to conduct far more expressive than this. In Troster , a state prison guard refused to wear an American flag patch on his uniform. 65 F.3d at 1087 . While recognizing the “various and somewhat imprecise ideas associated with [the flag],” id. at 1091 , and noting that the Supreme Court has called the flag a symbol “[p]regnant with expressive content,” id. (quoting Texas v. Johnson, 491 U.S. at 405 , 109 S.Ct. at 2540 ), we nevertheless held that refusing to wear it could not “relay any message (ideological or otherwise) to anyone.” Id. We found “no evidence that [the wearing of a flag patch] is likely to function in a communicative fashion.” Id.

Similarly, in Steirer, albeit under the higher pre-Hurley standard, we dismissed the suggestion that compliance with a general requirement could constitute expressive conduct. In Steirer, certain high school students had challenged a school requirement that they fulfill sixty hours of community service before graduation. 987 F.2d at 990. We rejected the argument that “people in the community who see these students performing community service are likely to perceive their actions as an intended expression of a particularized message of their belief in the value of community service and altruism.” Id. at 997. We instead concluded, “It is just as likely that students performing community service under the auspices of a highly publicized required school program will be viewed merely as students completing their high school graduation requirements.” Id. Compliance with this general requirement *1296 lacked any “obviously expressive element.” Id. at 995.

The legal requirement that a witness appear when subpoenaed bears some resemblance to a high school’s requirement that students perform community service to graduate. Under Steirer, this type of conduct— even assuming it were expressive — is not sufficiently expressive. It certainly falls far short of the level of expression embodied in Troster’s refusal to wear a flag patch on his uniform, which we likewise found insufficiently expressive. Compliance with a subpoena is simply not “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” 65 F.3d at 1090 . Compliance is therefore not speech in its constitutional sense. Pro’s termination did not violate her First Amendment rights, and her § 1983 claim must fail.

2.

The majority reaches the opposite conclusion by working in reverse. Rather than following the standard analytical steps in a First Amendment claim and beginning with the threshold question of whether compliance with a subpoena is speech, the majority constructs an elaborately subtle argument that starts from the premise that courtroom testimony is absolutely protected regardless of its content. The majority then moves backward, stretching the zone of protection accorded testimony to include compliance with a subpoena. Aside from ignoring the threshold issue of what constitutes speech, there are two problems with this argument. The central premise is dictum, and it is incorrect.

First, any discussion of the protected status of actual courtroom testimony is ultimately obiter dictum. At oral argument, counsel for the City of Philadelphia conceded that if Pro had in fact testified, her testimony would have been automatically and absolutely protected. Any holding on this issue is therefore superfluous.

More importantly, any holding that Pro’s testimony at trial would be absolutely protected regardless of its content is incorrect. As a government employee, Pro’s free speech activity is only protected if it meets a two part test: The communication must address a matter of public concern, and the employee’s interest in the expression must not be outweighed by the interest of the state-as-employer in promoting the efficiency of its public service. Watters v. City of Philadelphia, 55 F.3d 886, 893 (3d Cir.1995) (citing Connick v. Myers, 461 U.S. 138, 142 , 103 S.Ct. 1684, 1687 , 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734 , 20 L.Ed.2d 811 (1968)). Although I agree with the majority that Pro can satisfy the latter element, there is no indication that she can meet the former.

We have repeatedly held that whether speech is a matter of public concern turns on the “content, form, and context of a given statement, as revealed by the whole record.” See Watters 55 F.3d at 892 ; Swineford v. Snyder County, 15 F.3d 1258 , 1271 (3d Cir.1994); O’Donnell v. Yanchulis, 875 F.2d 1059 , 1061 (3d Cir.1989). A cursory survey of the cases shows that the three factors in this inquiry are not co-equal. In practice, we have looked almost exclusively to content.

Alternative formulations of the public concern element reveal the primacy of content. In Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993), we described a public concern as something “fairly considered as relating to any matter of political, social, or other concern to the community.” Id. at 195 . In Swineford v. Snyder County, 15 F.3d 1258 , 1271 (3d Cir.1994), we cited Supreme Court descriptions of public concerns as matters going to “the essence of self government,” Garrison v. Louisiana, 379 U.S. 64, 74-75 , 85 S.Ct. 209, 216 , 13 L.Ed.2d 125 (1964), matters on which “free and open debate is vital to informed decisionmaking by the electorate,” Pickering, 391 U.S. at 571-72 , 88 S.Ct. at 1736 , and matters as to which “debate ... should be uninhibited, robust, and wide open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710, 720 , 11 L.Ed.2d 686 (1964). In Sanguigni v. Pittsburgh Bd. of Public Edite., 968 F.2d 393 (3d Cir.1992), we identified categories of public concern that included “speech related to broad social or policy issues,” id. at 397, speech implicating “the discharge of public responsibilities by an important government office, agency, *1297 or institution,” particularly speech “relatfing] to the way in which a government office was serving the public,” id. at 397-98, and speech on “alleged improprieties by a government office,” id. at 398. This contrasted with nonpublic matters, such as “questions regarding office transfer policy, office morale, the need for a grievance committee, and the employee’s level of confidence in supervisors.” Id. at 399. 2

The subjects that we have identified as matters of public concern further illustrate the primacy of content. See Watters, 55 F.3d at 891-95 (head of police-counseling program in Philadelphia police department criticizing lack of support for program); O’Donnell, 875 F.2d at 1061 (3d Cir.1989) (chief of police claiming township supervisors pressured police to “fix” citations); Zamboni v. Stamler, 847 F.2d 73, 77 (3d Cir.) (detective charging department reorganization violated state civil service laws), cert. denied, 488 U.S. 899 , 109 S.Ct. 245 , 102 L.Ed.2d 233 (1988); Rode v. Dellarciprete, 845 F.2d 1195, 1201-02 (3d Cir.1988) (employee alleging discrimination in Pennsylvania State Police where issue had previously been subject of state legislative hearings); Johnson v. Lincoln University, 776 F.2d 443 , 452 (3d Cir.1985) (professor at historically black university commenting on alleged lowering of academic standards and its effects on blacks); Czurlanis v. Albanese, 721 F.2d 98, 104 (3d Cir.1983) (employee criticizing county government practices as inefficient, at times fraudulent, and a waste of taxpayer money). These precedents show that the principal attribute of protected speech by a public employee is some content-laden communication regarding a subject of importance to the community as a whole.

Our treatment of “form and context” provides additional support for this conclusion. Although we have repeatedly mentioned these elements in discussing speech on a matter of public concern, the two factors have never played a controlling role in any opinion of this court. Instead, the types of “form and context” that we have considered have largely operated as proxies for content. For example, we have taken additional notice of statements that are disseminated in public media, Holder v. City of Allentown, 987 F.2d 188, 195-96 (3d Cir.1993) (open letter to the editor in city newspaper), or delivered in an official proceeding, Czurlanis, 721 F.2d at 104 (stressing that allegations of mismanagement were made during time allotted to public at meeting of county board of supervisors). Both are indications that the substance of the message has significant importance to the community. We said as much in Holder , noting that the newspaper’s decision to print the letter — the key factor creating its context — provided additional evidence of the letter’s newsworthiness. 987 F.2d at 195 . Consistent with this approach, in Sanguigni we found that context failed to indicate a matter of concern where statements appeared in a faculty newsletter otherwise devoted exclusively to topics such as “extra effort buttons, the ‘April showers bingo,’ the faculty lunch menu, the employee-of-the-month award, and the work of the Sunshine Committee.” 968 F.2d at 399. Context in that case again operated as a proxy for content, demonstrating the private nature of the dispute.

This well-established line of cases indicates that if Pro had actually testified, her testimony would be evaluated under the “content, form, and context” standard. That inquiry would depend heavily on content, with form and context providing secondary evidence that her testimony could be “fairly considered as relating to any matter of political, social, or other concern to the community.” Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir.1993). Pro did not, of course, testily, so there is no way to determine from this record whether her testimony would meet this standard. Nevertheless, it appears that Pro would face an uphill battle. She was called to testify at a proceeding between two private litigants. The subject matter of the dispute was a divorce action, the epitome of a private matter. The content of the *1298 proposed testimony appears to have been equally private — Pro has suggested that she was called to speak about an extra-marital affair. Absent some additional showing, Pro’s testimony cannot meet the public concern requirement.

The majority declares otherwise, concluding that the form and context of courtroom testimony make it inherently a matter of public concern. To support its conclusion, the majority relies on a line of eases from the Court of Appeals for the Fifth Circuit, which has given blanket protection to any truthful testimony given in an adjudicatory proceeding. See Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1568 (5th Cir.1989) (“[wjhen an employee testifies before an official government adjudicatory or fact-finding body he speaks in a context that is inherently of public concern”), cert. denied, 493 U.S. 1019 , 110 S.Ct. 718 , 107 L.Ed.2d 738 (1990); Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096 (5th Cir.1987) (protecting public school teacher from retaliatory demotion for truthful testimony as witness in civil proceeding). This blanket rule forms the linchpin in the majority’s extension of First Amendment protection to compliance with a subpoena. As the majority explains, “there is no ‘practical distinction between retaliation on the basis of a public employee’s actual testimony and the retaliation that Pro alleges.’ ” Majority Opinion at 1291 (quoting Pro v. Donotucci, No. 94-6001, at 4 n. 3 (E.D.Pa. Sept.6, 1995)). Or, as the district court stated more plainly elsewhere, “This shift is important ..., because if testimony qua testimony receives First Amendment protection regardless of its content, then it is analytically irrelevant whether the speaker speaks at all.” Pro v. Donotucci, No. 94-6001, at 11, 1995 WL 552980 (E.D.Pa. Sept.18, 1995).

Unfortunately, this is incorrect. As the examination of this court’s precedent shows, giving blanket protection to all courtroom testimony breaks sharply with the law of this circuit. It clearly contradicts our long-standing focus on content. It also departs from our past interpretations of form and context. The fact that testimony occurred in a courtroom is not a viable proxy for its importance to the community, it simply marks the place where the physical act of speaking occurred. The courtroom context, devoid of any examination of content, cannot support a blanket public concern rule.

This brings me to the point that I think ultimately drives the majority’s opinion: the compelled “form” of subpoenaed testimony. See Majority Opinion at 1290. Here I would remind the court of the well-established principle it correctly set forth earlier in its opinion. This principle recognizes that although the public employee has free speech interests, “the state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Majority Opinion at 1287 (quoting Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734 ). Consequently, as the majority is equally correct to note, we must “strike a ‘balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Id. (quoting Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734 ).

Blanket protection of courtroom testimony upsets the balance. The rule is unrealistically broad and handcuffs the govemment-as-employer in areas where it should be able to act. Absolute protection for statements made in an adjudicatory hearing regardless of their content means that an employee who discloses prejudicial information in a civil case or proceeding, no matter how unconnected that proceeding is to his employment or how egregious the information, cannot be disciplined based on those statements. 3 The Court of Appeals for the Elev *1299 enth Circuit has already rejected this rule on facts that prove its impracticality. See Hansen v. Soldenwagner, 19 F.3d 573 (11th Cir.1994) (refusing to find inherent First Amendment violation in termination of police officer following testimony during investigation into suspension of second officer, where first officer testified in abusive, vulgar, and unprofessional fashion about superiors in department and department practices); see also Wright v. Illinois Dept. of Children & Family Servs., 40 F.3d 1492 (7th Cir.1994) (refusing to adopt Fifth Circuit’s “blanket rule”).

I believe that the public concern requirement, as this court has traditionally applied it, adequately protects the free speech rights of government employees while recognizing the government’s need to act as an employer. The principles set out in our precedents protect much that occurs in a courtroom. Whenever an employee testifies on something “fairly considered as relating to any matter of political, social, or other concern to the community,” Holder, 987 F.2d at 195 , that testimony is protected. Moreover, form and context still operate to raise matters of semi-public content to public importance. Absolute protection does not extend, however, to purely private matters in purely private proceedings. This is the proper balance.

As a result, the majority is incorrect when it states (in dictum) that if Pro had testified, her testimony would be absolutely protected. Without this initial premise, there is no zone of protection that can be stretched to include compliance with a subpoena. The argument collapses. This is understandable, because as discussed in Part I, compliance with a subpoena is not only not speech on a matter of public concern, it is not even speech.

3.

For these reasons, I conclude that Pro has. failed to establish a § 1983 claim for a violation of her First Amendment rights. As I noted at the outset, this does not mean that she has no recourse. This court would be rightfully concerned if an employer could terminate an employee with impunity simply because the employee appeared when commanded by subpoena. Fortunately, this is not the case. Pennsylvania law directly addresses this situation.

Like many states, Pennsylvania recognizes a common law cause of action for wrongful discharge where the reason for the discharge offends a clear mandate of public policy. Geary v. United States Steel Corp., 456 Pa. 171 , 319 A.2d 174 (1974); see also Innes v. Howell Corp., 76 F.3d 702 (6th Cir.1996) (noting public policy exception under Kentucky law); Rafferty v. NYNEX Corp., 60 F.3d 844 (D.C.Cir.1995) (noting public policy exception under District of Columbia law); Piekarski v. Home Owners Savings Bank, F.S.B., 956 F.2d 1484 (8th Cir.1992) (noting public policy exception under Minnesota law); Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 , 417 A.2d 505 (1980) (recognizing public policy exception under New Jersey law). This cause of action extends to all employees, including private employees at will. See Clark v. Modern Group Ltd., 9 F.3d 321 (3d Cir.1993) (discussing Pennsylvania’s public policy exception). There appears to be no reason why it would not cover Pro’s employment situation.

*1300 Pennsylvania’s public policy exception protects employees from being forced to commit illegal acts as a condition of their employment. It also prevents employers from using an employee’s compliance with legal requirements as a basis for termination. The seminal case in this area recognized an action for wrongful termination grounded in the public policy exception where an employee was terminated for complying with a statutory duty to serve on a jury. Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28 , 386 A.2d 119 (1978).

The duty to comply with a subpoena is directly analogous to the duty to serve on a jury. Indeed, the basis for the Pennsylvania Superior Court’s decision in Reuther was its recognition that under Pennsylvania law, a “[sjummons for jury service ... shall be deemed summonses of the court....” 386 A.2d at 120 . Reuther’s rule therefore logically applies to a subpoena, which by definition is a summons of the court. At least one decision from the district courts of this circuit has extended the Pennsylvania public policy exception to cover termination for responding to a subpoena. See Reiser v. North Am. Life Assur. Co., 1986 WL 4829 at *1 (E.D.Pa. Apr.18, 1986) (Clifford Scott Green, J.). Other states have similarly extended their public policy exceptions to cover termination for compliance with a subpoena. See Garner v. Morrison Knudsen Corp., 456 S.E.2d 907 (S.C.1995); Nees v. Hocks, 272 Or. 210 , 536 P.2d 512 (1975); Williams v. Hillhaven Corp., 91 N.C.App. 35 , 370 S.E.2d 423 (1988). I am confident that the Pennsylvania courts would have recognized a wrongful discharge claim on the facts of this case. 4

Although the scope of First Amendment protection clearly cannot depend on the presence or absence of alternative remedies, the existence of a state law claim does much to address the otherwise troubling equities in this case. Pennsylvania law, not 42 U.S.C. § 1983 , provides the appropriate means of redress for Pro’s termination. Consequently, constitutionalizing compliance with a subpoena is not only incorrect, it is unnecessary.

4.

Sisinia Pro was wrongfully terminated for complying with a subpoena. Unfortunately, she chose to sue under the wrong cause of action. When Pro complied with the subpoena, she was simply obeying the law. Obedience to the law is not free speech. The resulting termination, while retaliatory and wrongful, was therefore not a violation of Pro’s First Amendment rights. I would reverse the district court’s denial of defendant’s motion for summary judgment, and I would enter judgment in the defendant’s favor.

. Troster intimated that a different standard might apply to compelled speech, as distinguished from restrictions on intellectual individualism. See 65 F.3d at 1089 . I believe that any difference would go to the degree of expressiveness required for conduct to qualify as protected speech, rather than to the threshold requirement of expressiveness itself. In my opinion, compliance with a subpoena fails the latter. To the extent that it also fails the former, I suggest that even if we assume that compelled speech requires a lesser degree of expressiveness to merit *1295 protection, compliance with a subpoena would still fall short.

. The exception to this rule is San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir.1994), cert. denied, -U.S. -, 115 S.Ct. 735 , 130 L.Ed.2d 638 (1995), in which this court held that the First Amendment right to petition has no content requirement. Pro was a potential witness, not a litigant, and the right to petition is therefore not implicated in this case. To the extent that San Filippo applies by analogy, I believe that Judge Becker has the stronger argument in dissent.

. For example, assume that a public employee observes an automobile accident between two private parties. The employee is subpoenaed to testify in the subsequent tort action. During cross-examination, the employee testifies that she knows exactly what time the accident occurred because she was skipping work to attend a baseball game and was concerned about missing the first pitch. Under the majority's rule, this testimony would be absolutely protected, despite the *1299 fact that it addressed a private matter in a private proceeding. The govemment-as-employer could not reprimand or otherwise discipline this employee, simply because the disclosure occurred in a courtroom. Other types of proceedings might produce more egregious statements. In the course of a hypothetical divorce action or child custody proceeding, an employee could let slip that she had moonlighted against company policy to increase her income, had falsified aspects of her background or qualifications, or had pilfered items of company property. Under the blanket rule, these statements would be protected. And as to more serious difficulties suggested by the last examples, presumably some legal fiction could be constructed so that an employee fired after confessing to a felony on the stand could be terminated based on the conviction, rather than based on testimony given 'before an official government adjudicatory or fact-finding body.” Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1568 (5th Cir.1989). Because the well-established principles of the pub-lie concern test adequately protect employees without handcuffing the govemment-as-employer, there is no need to invite these complications by adopting an absolute rule protecting testimony.

. In addition, my disposition of Pro’s § 1983 First Amendment claim would not foreclose other challenges that she may have had available. It is well-established that under certain circumstances, termination of a public employee can violate the due process clause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985); Blanding v. Pennsylvania State Police, 12 F.3d 1303 (3d Cir.1993). Pro may also have an action for breach of contract. These theories are familiar figures in § 1983 actions alleging retaliatory termination for exercise of First Amendment rights. See, e.g., Sanguigni, 968 F.2d at 396 ("Sanguigni filed this action ... alleging that defendants had violated her freedom of speech, freedom of association, and due process. She also noted various pendent state claims.”). Pro’s complaint, however, did not mention these other claims. The model of minimalism filed in this action alleged only one count in exactly twelve numbered paragraphs. With nothing to contradict my faith in counsel’s diligence, I assume that Pro's attorney recognized these alternatives when selecting his litigation strategy, but shifted to a § 1983 claim because of other considerations.