• Dean Royer

First Amendment claim despite no free speech activity

Is there a claim if the employer incorrectly believes the employee exercised free speech rights?

On April 26, 2016, the U.S. Supreme Court considered whether a government employee had a First Amendment claim against his employer. In Heffernan v. City of Paterson (2016) ___U.S.___ [136 S.Ct. 1412], the employer incorrectly believed the employee supported a particular candidate for mayor. The question was whether the factual mistake made a critical difference.

In this case, Mr. Heffernan, was a police officer in Paterson, New Jersey. In 2005, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Mr. Torres had appointed the Chief of Police and a subordinate who directly supervised Mr. Heffernan. During the campaign, Mr. Heffernan’s mother asked her son to pick up a Spagnola sign. Mr. Heffernan went to a distribution point and picked up the sign. While there, other members of the police force saw him, sign in hand, talking to cam­paign workers. Word quickly spread throughout the force. The next day, Mr. Heffernan’s supervisors demoted him.

Mr. Heffernan filed a lawsuit in federal court claiming that he had been demoted because of his constitutionally protected speech. The District Court decided that he had not en­gaged in any First Amendment conduct; and, for that reason, had not been deprived of any constitutionally protected right. The Court of Appeals agreed after concluding that a free-speech retaliation claim exists only where the employer’s decision was motivated by an employee’s actual, rather than perceived, exercise of constitutional rights.

The Supreme Court began by noting that, with a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. For purposes of its review, the high court assumed that the exceptions did not apply in this case.

The Supreme Court looked at the words of the relevant law (42 U.S.C. section 1983), which authorizes a lawsuit by a person “depriv[ed]” of a “right…secured by the Constitution.” That language did not answer the question before the high court because “right” could focus on the employee’s actual activity or the employer’s motive based on what it believes the activity to be.

The Supreme Court next reviewed its previous decisions. It acknowledged three of them that suggest the “right” concerns the employee’s actual activity. Those cases, however, did not involve a factual mistake about the employee’s conduct. In a fourth decision (Waters v. Churchill (1994) 511 U. S. 661), the high court decided there was no First Amendment violation as long as the employer (1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mis­taken belief. In other words, it was the em­ployer’s motive, and in particular the facts as the employer reasonably understood them, that mattered.

The Supreme Court turned back to the case before it, noting that the employer mistakenly thought that Mr. Heffernan had engaged in protected speech. The high court concluded that, as in the Waters case, the government’s reason for demoting Mr. Heffernan is what counted. Consequently, when an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amend­ment and section 1983—even if the employer makes a factual mistake about the employee’s behavior.

#FirstAmendment #Retaliation

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