A Case of Mistaken (Political) Identity: Can Government Employers Punish Workers for Their Unexercised First Amendment Rights?


By: Wes Jackson

Does the First Amendment protect citizens’ speech and association, or does it prohibit the government’s retaliation to such conduct? At first glance, these goals would appear to be two sides of the same coin—citizens’ free speech is protected by barring the government’s retaliation. But an odd set of circumstances involving a government employee in Patterson, New Jersey, is challenging the notion that a government’s violation of the First Amendment necessarily requires an instance of protected speech or association by a citizen. And last month, the Supreme Court heard oral arguments on this set of circumstances in Heffernan v. City of Paterson. The Court will ultimately decide whether a City’s retaliation against a police officer for his perceived exercise of First Amendment rights violates the Constitution if, in fact, the officer was not actually exercising those rights.

            Plaintiff Jeffrey Heffernan was a police officer in Paterson, New Jersey. By all accounts, he was a model officer who received several commendations for his work over a twenty-year career before being promoted to detective. He apparently was a model son, too: when his bedridden mother asked him to drive to town to pick up a mayoral candidate’s campaign sign after her first sign was stolen, he did so that same day. One problem, though, was that the campaign sign promoted a challenger who wished to unseat the then-incumbent mayor. Another problem was that a fellow Paterson police officer—who was assigned to the security staff of the incumbent mayor—saw Heffernan pick up the sign and interact with the challenger’s campaign manager. Heffernan delivered the sign to his mother. But the next day, he was demoted to a “walking post” because of his perceived involvement in the political election.

            Heffernan brought § 1983 actions against the City and some of its officials for First Amendment retaliation in the District of New Jersey. The trial court granted summary judgment in favor of the City because Heffernan failed to produce any evidence that he actually exercised his First Amendment rights. On appeal, the Third Circuit agreed: the record clearly established beyond question that Heffernan was not exercising any First Amendment rights when he picked up the sign because he neither intended to communicate a political message nor had any political affiliation with the challenger’s campaign. In his own words, “I was picking up a sign for my mother, and that’s all I was doing.” The Third Circuit then rejected Heffernan’s argument that he could assert a First Amendment retaliation claim under a “perceived support” theory, where the employer’s retaliation is based on a mistaken belief that the employee exercised a First Amendment right. The Third Circuit reasoned that a First Amendment retaliation claim must be predicated on the actual exercise of a First Amendment right, rather than the mere perception of such exercise.

            At oral argument before the Supreme Court, the justices examined every facet Heffernan’s “perceived support” theory. On one hand, some justices doubted whether an employee has a First Amendment right to be free from the government’s misperception of his views. As Justice Scalia observed, “he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.” Along these lines, Chief Justice Roberts queried whether public employees have other, non-constitutional remedies available for being fired for “the wrong” reason. And the idea of untethering First Amendment retaliation claims from constitutionally protected conduct, especially when other remedies are available, raised a pragmatic concern: might basing retaliation claims exclusively on the government’s motive result in a flood of meritless claims?

            On the other hand, some justices espoused the view that when it comes to government retaliation, motive matters. Justice Ginsberg suggested that the thrust of the First Amendment is operating on government, to which it says: “thou shalt not act on the basis of someone’s expression, speech, or belief.” Similarly, Justice Kagan stated her belief that “part of the reason we have these protections is because we worry the government is doing things for impermissible reasons. That the government wants to create a world of speech in which everybody agrees with it and nobody opposes it.” In light of these concerns, the City’s attorney maintained his position that First Amendment claims necessarily require the plaintiff’s exercise of a constitutional right: “It’s called an individual right, not a government wrong.”

            The Court’s decision is expected by June. While oral argument suggested that there is at least some disagreement between the justices as to the necessary conditions for a First Amendment retaliation claim, the “highly artificial” nature of the facts, as Justice Alito referred to them, may lead to a narrow holding. Regardless of the outcome, this case shines a light on the importance of respecting government employee’s First Amendment rights in the local government context, where politics often play an outsized role in day-to-day operations.