Justices Ponder Public Employees' First Amendment Shield

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By Kevin McGowan

Jan. 19 — A city police officer demoted because of supervisors' perception of his political affiliation has a triable First Amendment retaliation claim, the officer's attorney argued to the U.S. Supreme Court Jan. 19.

The justices are considering whether a public employer violates First Amendment rights by penalizing an employee for perceived political association, even if the employee hasn't engaged in any protected speech or activity. The U.S. Court of Appeals for the Third Circuit ruled that former Paterson, N.J., police detective Jeffrey Heffernan lacks a First Amendment claim because he never actually engaged in any activity on behalf of the incumbent mayor's electoral opponent ((15 DLR AA-1, 1/23/15)).

But other federal appeals courts have ruled adverse employment action based on a nonpolitical public employee's perceived affiliation raises a First Amendment claim, the same as if the public employer retaliated against the employee for his actual political activity.

During oral argument, Justice Anthony Kennedy asked if the constitutional claim was “the right to be free from government inquiry” into an employee's political views. Heffernan's lawyer said that was a fair summary of the First Amendment right being asserted.

But Justice Antonin Scalia said court precedent only prevents government policies that require public employees to affiliate with a political party, not “one-off” employment actions based on mistaken perceptions.

Heffernan was “not expressing any First Amendment view whatever,” Scalia said. “He was fired for the wrong reason, but there's no constitutional right not to be fired for the wrong reason.”

During the city's argument, Justice Elena Kagan asked if the First Amendment prevents a city government from penalizing a public employee for not sharing an administration's political views. She said the answer was certainly yes.

Lawyers representing Heffernan, the city and the solicitor general as amicus for Heffernan all faced tough questioning.

Chief Justice John Roberts, Scalia and Justice Samuel Alito seemed to express skepticism that Heffernan alleged a triable First Amendment claim, given his professed lack of any political activity or interest.

But questions from Kagan and Justices Ruth Bader Ginsburg and Stephen Breyer suggested they view as too narrow the city's definition of First Amendment protections.

Kennedy posed challenging questions for both sides.

What's the Protected Interest?

Representing Heffernan, Mark Frost was challenged by the court on how to define Heffernan's asserted First Amendment interest. Heffernan had testified he was picking up and delivering to his bedridden mother, as a favor, a campaign yard sign for the mayor's electoral opponent. Heffernan said he had no political interest in the mayoral race's outcome; in fact, he was ineligible to vote in the election because he was not a resident of Paterson. Another police officer happened to see him holding the campaign sign when he was getting ready to deliver it to his mother, reported it to superiors, and shortly thereafter Heffernan was demoted from detective to foot patrol duty.

The court's political patronage precedents—Elrod v. Burns, 427 U.S. 347, 1 IER Cases 60 (1976), Branti v. Finkel, 445 U.S. 507, 1 IER Cases 91 (1980), and Rutan v. Republican Party of Illinois, 497 U.S. 62, 5 IER Cases 673 (1990)—shield nonpolitical public employees from adverse action for their political affiliation or lack of affiliation, Frost said.

The First Amendment protected Heffernan from adverse action based on the government's impermissible motivation even if he engaged in no political activity, Frost said. A government employee can't be penalized for political neutrality, said Frost, of Mark B. Frost & Associates in Philadelphia.

Elrod says you have a First Amendment right to favor a political party or not favor a political party, and you cannot be fired for doing so,” Scalia said. “That's not what happened here.”

Alito asked “what expressive activity” Heffernan engaged in. He wasn't “allegedly demoted for failing to support the mayor” but rather for “seemingly supporting the mayor's opponent,” Alito said. But Heffernan claims he did neither.

If the government perceives an employee is engaging in political activity and has a motive to “suppress” the employee's political belief or lack of belief, the First Amendment protects that employee, Frost replied.

The city's impermissible motive is sufficient to raise the constitutional claim, Frost said.

But what's the constitutional right being asserted, Kennedy persisted. He then asked if a government employer could require that all public employees stay politically neutral. 

The government could adopt such a policy after balancing competing interests of the employees and the public employer, Frost replied.

But there was no such policy in this case, in which the police chief demoted Heffernan from detective to foot patrol because of his perceived political association, Frost said.

Alternate Remedies Available?

Roberts asked if Heffernan could have asserted alternative legal claims over the demotion, such as under a collective bargaining agreement or New Jersey state law.

“My point is maybe this shouldn't be a constitutional violation if there are adequate remedies to address what may or may not be a First Amendment issue,” Roberts said.

New Jersey has a civil rights law that's similar to the federal Civil Rights Act of 1871 (42 U.S.C. § 1983) so it creates no additional substantive rights, Frost replied.

Pressed by Scalia about the New Jersey statute's contents, Frost said it “mimics” Section 1983, providing a vehicle to sue for alleged constitutional violations but no additional rights against the government.

Alito pointed out the city's brief said a New Jersey statute prevents “an attempt to violate an individual's civil rights.” Is the city wrong? Alito asked.

Frost acknowledged that is part of New Jersey law. But “that doesn't give you an exclusive right,” Frost said. “You can't diminish his First Amendment rights” through state law, he said.

But when Alito pursued the point, Frost said Heffernan “could have a remedy under state law.”

Justice Sonia Sotomayor asked what civil right was violated under state law. The employee's right “not to associate,” Frost replied.

Heffernan had “every right to maintain” the federal court lawsuit regarding the alleged First Amendment violation, Frost said. It's the employee's right “not to associate,” based on Elrod and its progeny, he said.

The Third Circuit's ruling also “lacks common sense,” Frost said.

Under the appeals court's reasoning, two police officers who both are demoted after being seen picking up a campaign sign would be treated differently for First Amendment purposes, he explained.

Only the officer actually affiliated with the candidate would be protected. But under Supreme Court precedent, the two officers' constitutional claims should be treated the same if the employer acts based on their perceived political affiliation, Frost said.

The appeals court ruling has a potential “chilling effect” on other public employees, who would “have to think twice” before engaging in conduct that could be perceived as political, Frost said.

Frost's points might ring true if, for example, a mayor said he's going to fire “anyone who's not a Republican,” Scalia said.

But if the mayor hasn't actually fired or demoted anyone, would any employee have a First Amendment claim based on the threat alone? Scalia asked.

“You're arguing this is unconstitutional because it ‘chills' other people,” Scalia said.

Justice Ginsburg asked if Heffernan is arguing he was demoted because he gave the appearance of exercising First Amendment rights.

Yes, Frost replied. Heffernan was demoted because of his perceived “ill will” toward the incumbent mayor, he said.

Political ‘Inquiry' Doesn't Violate First Amendment

Representing the city, Thomas C. Goldstein said no First Amendment claim was raised by Heffernan's demotion because he wasn't a politically “neutral” public employee but rather politically “apathetic.”

Heffernan might have a grievance under his collective bargaining agreement or a New Jersey state law claim, but no First Amendment claim exists absent any protected activity, said Goldstein of Goldstein & Russell in Bethesda, Md.

The court in Elrod and Branti said the First Amendment protected public employees' political neutrality because that's “a political choice,” Goldstein said.

But Heffernan's case is “critically different” because he alleged “no association whatsoever” and presented himself as “politically oblivious,” Goldstein said.

Does that mean an incoming executive who says he wants all public employees to be Democrats could constitutionally get rid of someone who's politically apathetic? Kagan asked.

Goldstein replied that would be true.

What if the mayor says he wants subordinate employees to be politically active but then fires employees who are active the “wrong way”? Kennedy asked.

The fired employee might have a collective bargaining or state law right to vindicate, but no First Amendment claim, Goldstein replied.

Citing Kennedy's earlier discussion with Frost, Goldstein said a right “not to have an inquiry” into an employee's political view isn't an established First Amendment right.

A policy requiring public employees' political affiliation can be “facially unconstitutional,” as in Elrod and Branti, Goldstein said.

But Kagan asked if those precedents actually stand for a broader principle. Isn't the idea that when the government is motivated by an impermissible purpose of requiring political conformity, it doesn't matter “whether the person is a Republican, an independent, or somebody who has never thought about politics in his life, because the government is acting in a way that's wrongful,” Kagan asked.

Goldstein disagreed, saying a First Amendment claim requires an individual's expressive activity. “There is no First Amendment right not to have this individual inquiry” by the government, he said.

Suppose an employer fires a women because it believes she is pregnant, but it turns out she just was gaining weight, Ginsburg asked. Would the fired employee nevertheless have a claim under the antidiscrimination laws? she asked.

The antidiscrimination statutes focus on the employer, while the First Amendment's focus is on individual rights, Scalia interjected.

Heffernan presents “a very sympathetic claim,” Goldstein said. But there are “other laws, other regimes that fill the gap” left by the First Amendment in Heffernan's case, Goldstein said.

For example, Heffernan could challenge the demotion as “inequitable” under his union contract and under New Jersey law, or he could sue over Paterson's “attempt” to violate his state civil rights, Goldstein said.

City's Analysis Is Challenged

Kagan, Kennedy, Ginsburg and Breyer all challenged Goldstein's view of First Amendment protections.

Assuming a public employee in a nonpolitical job can't be fired because he is a Republican or Democrat, shouldn't an employee who doesn't engage in any political activity also be protected, Kennedy asked.

The government in Heffernan's case is acting against the employee based on its assumption the employee is expressing First Amendment rights, Ginsburg said.

But Goldstein said all constitutional rights, except the 13th Amendment right not to be enslaved, require “some activity” on the individual's part.

No municipal policy was involved in Heffernan's case, just a “one-off” employment action in which the police chief allegedly retaliated for Heffernan's perceived political activity, Goldstein said.

The case therefore is distinguishable from Elrod and Branti because “no general policy” was at stake under which the government required or punished political affiliation, Goldstein said.

Those two cases involved policies that were held “facially unconstitutional,” Goldstein said.

But no Supreme Court First Amendment case says an individual employee is excused from showing he engaged in protected activity if the government thinks he did, Goldstein said.

So the city wants the court to hold that “the government has the right to ascribe to an employee political views he may not hold,” Kennedy said. Goldstein seems to be saying the city's motive doesn't matter, Kagan said.

The Third Circuit was correct when it said the government's motive is a necessary, but not sufficient, element of a First Amendment retaliation claim, Goldstein replied.

All the parties and justices seem to agree that if Heffernan were a supporter of the mayor's opponent, or even of the mayor, or had decided to remain politically neutral, he would have First Amendment protection, Goldstein said.

But “this is a bizarre case that comes to you on the assumption that he is completely politically apathetic,” Goldstein said.

Under those circumstances, Heffernan can't assert any First Amendment claim, he argued.

Goldstein said he doesn't mean to “demean the concern” about the government ascribing political views to employees.

“There are multiple layers of protection” for such employees under union contracts and state laws without the need to distort the First Amendment to reach them, Goldstein said.

Ginger D. Anders, assistant to the solicitor general, argued for the Justice Department as amicus for Heffernan.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information 
Text of the oral argument transcript is available at http://src.bna.com/b6b.