To raise a First Amendment retaliation claim, must public employees show they were fired for actually engaging in constitutionally protected activities?
In Paterson, New Jersey’s 2006 mayoral election, Mayor Jose Torres faced former police chief Lawrence Spagnola. Although he was friends with Spagnola and supported him privately, Paterson police detective Jeffrey Heffernan did not campaign for Spagnola, vote in the election, or consider himself politically active. But the day after picking up a Spagnola campaign yard sign at his mother’s request, Heffernan was demoted for his alleged political activities. The Supreme Court will decide if Heffernan, to raise a First Amendment retaliation claim, must show that he actually engaged in constitutionally protected activity, or merely demonstrate that the City of Paterson fired him based on its belief that he engaged in protected activity. Heffernan argues that the First Amendment protects government employees from adverse action that is based upon political expression or association, regardless of the true nature of employees’ activities. But Paterson maintains that the First Amendment protects only the literal exercise of association and speech. The Court’s decision will impact how public employees engage in political activity, and the amount of litigation surrounding retaliation claims.
Questions as Framed for the Court by the Parties
Does the First Amendment bar the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate?
After twenty years in Paterson, New Jersey's police department, Jeffrey Heffernan was named a detective in 2005. Heffernan was assigned to the office of the Chief of Police, James Wittig, whom incumbent Mayor Jose Torres appointed. In the 2006 mayoral election, Torres faced Lawrence Spagnola, a former police chief. Although Heffernan and Spagnola are “close personal friend[s] . . . [who] have known each other for decades[,]” Heffernan did not consider himself politically active. Heffernan did not work on Spagnola’s campaign, and did not vote in the election because he was not a Paterson resident.
Before the election, Heffernan’s mother asked him for a Spagnola campaign sign to place in her yard. Heffernan called Spagnola’s campaign manager and arranged to pick up the sign at a distribution center while Heffernan was off duty. At the center, Heffernan “brief[ly] encountered” the campaign manager. Heffernan then drove back to his mother’s home and dropped off the lawn sign. He did not place it in the yard. But a Paterson police officer patrolling the area witnessed Heffernan’s encounter with the campaign manager and reported it to his supervisor.
The next day, Heffernan was demoted to a patrol officer and reassigned to a “walking post.” When Heffernan protested, Chief Wittig cited his political activity as the reason for his demotion.
In August 2006, Heffernan filed a civil rights action under 42 U.S.C. § 1983 in the District Court of New Jersey. He alleged that Wittig, Torres, and the City of Paterson (collectively, “Patterson”) violated his First Amendment rights to freedom of speech and freedom of association. The judge denied motions for summary judgment, and for reasons unclear, the case went to trial on the freedom of association claim only. The jury found for Heffernan, but the judge “retroactively recused himself based on what he concluded was a conflict of interest and vacated the jury’s verdict.” On reassignment, a new judge granted summary judgment in favor of Paterson on the freedom of speech claim. The U.S. Court of Appeals for the Third Circuit remanded the decision. The Third Circuit found that the district court failed to consider the free association claim, and should have allowed Heffernan to file a brief opposing Paterson’s summary judgment motion.
Before a third and different judge, the district court again granted summary judgment for Paterson. Relying on Ambrose v. Twp. of Robinson, 303 F.3d 488 (3d Cir. 2002), the court concluded that the First Amendment protects only the actual exercise of rights. In other words, Heffernan needed to show that he actually exercised his free speech and association rights and was fired for doing so. While recognizing a split among circuit courts, the district court held that Paterson’s perception of Heffernan’s activity could not form the legal basis for liability under a retaliation claim.
The Third Circuit affirmed, agreeing that First Amendment retaliation claims require plaintiffs to exercise a protected First Amendment right. Consequently, the court decided that disciplining a public employee for his speech or association based on mistaken information—even if the government employer incorrectly perceives that the public employee engaged in protected activity—does not violate the First Amendment.
The Court will decide whether a public employee must show that she engaged in protected First Amendment activities to bring a retaliation claim. Heffernan contends that an employer’s reacting to an employee’s perceived political association is sufficient, even if there was no actual political association, because the employer’s “factual mistake [does] not cure their constitutional mistake.” But Paterson argues that an employee must demonstrate actual political association, because her First Amendment rights cannot be infringed if they were never exercised.
IS ACTUAL POLITICAL ASSOCIATION A THRESHOLD REQUIREMENT TO RAISE A FIRST AMENDMENT RETALIATION CLAIM?
Heffernan contends that First Amendment retaliation claims are “predicated on the perception and motivation of the employer.” Heffernan explains that the First Amendment protects a person’s acts of association and her right to associate, including her right not to associate. Heffernan says, quoting the Court, “‘Freedom of association . . . plainly presupposes a freedom not to associate.’” Heffernan analogizes retaliation to political patronage, when employers pressure their employees to support certain candidates or political views. The Court, Heffernan argues, has roundly rejected patronage as unconstitutional, because the government, by threatening employees with discipline or termination, limits their right to support whom they wish. Heffernan concludes that the same logic applies here.
However, Paterson contends that premising First Amendment retaliation claims on employers’ perceptions, instead of employees’ political acts, expands the First Amendment beyond its text. Paterson explains that the First Amendment explicitly states the government shall not “abridge a right,” presupposing the existence of a right. “By definition,” Paterson argues that there is no right to infringe unless Heffernan actually associates, and contends that Heffernan has not offered evidence that the Framers “understood the First Amendment to operate any differently.” Paterson asserts that Heffernan’s perception analysis “attacks well-settled law with a cleaver”: it would destroy the current legal framework for determining First Amendment retaliation claims by eliminating the need to show that the “employee’s speech was constitutionally protected.” Paterson explains that the Court’s Pickering doctrine protects expression if public employees’ interests in expression outweigh “the government’s interest in managing the workplace[.]” The test includes determining whether the First Amendment provides protection in the first place, Paterson argues, but Heffernan’s theory renders that analytical step moot.
LOOKING TO THE COURT’S PRECEDENT
Heffernan contends that the Court’s precedent shows that employers’ perceptions are the crux of retaliation claims. Heffernan explains that in Waters v. Churchill, 511 U.S. 661 (1994), a plurality of the justices held that evaluation of retaliation claims should focus “on what the employer ‘really did believe’ rather than on what the employee actually said.” Heffernan states that in Rankin v. McPherson, 483 U.S. 378 (1987), the Court found the perception of the employer more important than the employee’s speech. And Heffernan points to Rutan v. Republican Party of Ill., 497 U.S. 62 (1990), Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (1976), in which the Court focused on the employer’s perception rather than the employee’s conduct. .
Paterson maintains that precedent clearly establishes actual political association, not perception and motivation, as the threshold for retaliation claims. Paterson asserts that even in a case such as Mount Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977), in which “the employer’s motivation [was] by definition a central feature,” the Court stated the employee had to “show that his conduct was constitutionally protected.” Paterson asserts that in a more recent case, Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court stated that the first question was whether the employee had engaged in protected speech.
Heffernan asserts that requiring actual political association to bring retaliation claims produces absurd results. Under the Third Circuit rule, Heffernan argues, “if Heffernan and another police officer had  picked up Spagnola campaign signs,” but the other officer supported Spagnola, Heffernan could be legally fired but the other officer would be constitutionally protected. . Heffernan contends that employees will be constantly on their guard, and fear that any expression or opinion—even the type of car they drive—may result in termination. Additionally, Heffernan contends that the rule disincentivizes employers from gathering information about their employees’ actions, because their motivation is the central question. Heffernan asserts that this “rewards the careless, politically-motivated supervisor, who is authorized to indulge his every whim concerning the political beliefs of his employees.”
Paterson argues that Heffernan’s examples are misleading, because local and state remedies protect employees from the whimsical behavior he describes. Moreover, Paterson states that focusing on perception would disrupt the workplace and create more costs than benefits. Under the current system, Paterson explains, the courts balance the interests of public employees with the prospect that such claims could disrupt the orderly function of the government. And Patterson contends that Heffernan’s theory increases employees’ burden to prove retaliation, because they need to prove their employers’ motivation.
The Court’s decision may impact if and when public employees exercise protected First Amendment rights, such as free speech, and affect the amount of litigation about retaliation. Heffernan argues that the First Amendment protects against decisions made on the plain basis of political expression or association. But Paterson contends that the First Amendment protects only actual expression or association.
Heffernan and supporting amici contend that the Third Circuit’s rule requiring public employees to show they actually exercised their protected rights will stifle their engagement in protected activity. The National Association of Government Employees (“NAGE”) argues that almost anything an employee does could lead others to suspect political affiliation. For example, NAGE explains, employees who are caught trying to educate themselves about political views, by watching debates or reading political publications, could face adverse action. Consequently, NAGE fears that the Third Circuit’s rule will leave public employees “theoriz[ing] which seemingly innocuous activities could prompt an adverse employment action.” NAGE concludes that an employee facing this “catch-22” would refrain from taking any positions at all, or only express positions that their employer agrees with. And NAGE contends that the Third Circuit’s rule will chill “political participation on the part of countless” public employees even in their capacities as private citizens.
However, Paterson contends that ignoring the employer’s misperceptions of an employee’s activities results in less chilling effects, because the Third Circuit’s rule creates clear boundaries that both employee and employer can understand. Similarly, Paterson asserts that imposing liability on an employer’s misperception would frustrate state statutes that protect government employees from “erroneous” discipline or termination. For example, Paterson notes that New Jersey “provides a state law cause of action for an ‘attempt’ to violate an individual’s civil rights . . . [, which] arguably describes [Heffernan’s] allegations.” Heffernan’s constitutional analysis, Paterson argues, disrespects federalism principles by undercutting this type of state law.
BALANCING THE NEED FOR PROTECTION WITH THE COSTS OF LITIGATION
The United States argues that by protecting only employees’ actual activity, employers can protect themselves from liability by claiming they acted on mistaken perceptions—although they would not be shielded from liability if their perceptions were correct. The United States explains that an employer still has an unconstitutional motive if it makes baseless conclusions about an employee’s political beliefs and terminates the employee for those beliefs. Thus, the United States concludes that “[t]he constitutionality of the employer’s motive  should be evaluated based on the facts as the employer believed them to be.”
But Paterson says that focusing on public employers’ perceptions will increase frivolous lawsuits and weaken their ability to defend against them. Paterson contends that employees might bring lawsuits based on tenuous evidence and a “feel[ing] they have been wrongly treated.” And because perception is difficult to prove, Paterson believes that the number of cases forced into expensive discovery and trial will be overwhelming. Paterson claims that the rule could extend to all individuals who apply for government employment.And Paterson asserts that First Amendment retaliation claims could devolve into debates over non-constitutional, generalized employment grievances. Accordingly, Paterson fears that a flood of litigation will unduly burden the government and inhibit its ability to provide services.
This case will decide whether engaging in protected activity is a threshold requirement of First Amendment retaliation claims. Heffernan asserts that the Court should focus on employers’ perception and motivation, and that precedent clearly supports his position. However, Paterson asserts that the actual exercise of constitutional rights constitutes a clear threshold for bringing First Amendment retaliation claims. The Court’s decision may affect public employees’ engagement in protected First Amendment activities.
- Christopher J. Oberst, Perception is Not Reality: Public Employees and “Perceived Speech”, Bloomberg BNA (Mar. 3, 2015).
- David G. Savage, High Court to Decide Free-Speech Limits in Political-Retribution Case, Los Angeles Times (Oct. 1, 2015).