“Perceived Speech” Supports First Amendment Retaliation


Actions often speak louder than words.  That was the crux of the novel issue presented to the U.S. Supreme Court in Heffernan v. City of Paterson, 2016 BL 131602, U.S., No. 14-1280, 4/26/16.

Reversing a Third Circuit decision, the high court ruled in a 6-2 decision that Jeffrey Heffernan, a New Jersey police officer who was demoted from detective all the way down to foot patrol officer because of his employer’s mistaken belief about his political loyalties, has a triable First Amendment retaliation claim.

Employer Jumped to Conclusions, Demoted Detective

The detective was in the right place, but it must have been the wrong time.

Heffernan was seen by other city police officers holding a large campaign lawn sign endorsing his good friend who was running against the incumbent mayor of Paterson, N.J., at campaign headquarters.  As a favor to his bedridden mother, he had agreed to pick up the sign to replace one that had been stolen from her yard. In fact, Heffernan was not involved in his friend’s campaign in any way. Even so, word of his “campaigning” spread through the department, and he was demoted the following day.

City’s Improper Retaliatory Motive

Heffernan’s supervisors demoted him as punishment for his “overt involvement” in an election campaign against the incumbent mayor who had appointed both his immediate supervisor and the chief of police.  It is a fairly safe bet that the supervisors thought he supported their political opponent. Heffernan argued they acted against him based on their mistaken perception that he engaged in conduct that is protected political speech, thereby denying him the exercise of his constitutional rights.

Third Circuit Got it Wrong

The Third Circuit previously determined that the police officer did not have triable First Amendment claims, affirming a  district court ruling that the officer had not been deprived of any constitutionally protected right because he had not engaged in any actual protected political speech or association.  

The U.S. Supreme Court reversed that decision, concluding the mistaken belief of supervisors is sufficient to raise a First Amendment retaliation claim under the Civil Rights Act of 1871, 42 U.S.C. § 1983.

Move Over, Schrodinger’s Cat

The Third Circuit rule was found to produce absurd results that could potentially chill a wide swath of political speech and conduct.  If a government employer can readily retaliate based on its own wrong perception, it has no need to investigate to find the truth about what an employee was actually doing.  The rejected rule effectively rewarded the worst supervisors with immunity from employees’ First Amendment retaliation lawsuits.

“The government acted upon a constitutionally harmful policy whether Heffernan did or did not engage in political activity,” the Supreme Court said.

Justice Clarence Thomas Dissents.

Justice Clarence Thomas disagrees with the majority, arguing that city officials tried but failed to violate Heffernan’s constitutional rights. Heffernan clearly stated he had no interest in the mayoral election.  Thomas reasoned that the officer’s failure to engage in any political speech or association was fatal to his retaliation claim. “Demoting a dutiful son who aids his elderly, bedridden mother may be callous. But it is not unconstitutional,” he said.

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