Perception is Not Reality: Public Employees and ''Perceived Speech''


Courts have long held that the First Amendment protects most rank-and-file public employees from being demoted or fired because they speak out in favor of a political party or candidate.

However, are you protected against being fired from a government job because your supervisor mistakenly believes that you support a political candidate? As a New Jersey police officer found out recently, the answer is apparently “no.”

Punished for Helping His Mother

Officer Jeffrey J. Heffernan was fired from the Paterson, New Jersey police force in 2006 for having “overt involvement” with the campaign of former police chief Lawrence Spagnola, who was running for election to unseat the city’s incumbent mayor. The accusation against Heffernan came after a fellow officer spotted him picking up a lawn sign from Spagnola’s campaign headquarters.

In fact, Heffernan did not live or vote in Paterson and did not work on Spagnola’s campaign, nor did he consider himself “politically involved” with the campaign. He picked up the lawn sign at his bedridden mother’s request and dropped it off at her house, where it was erected by another family member.

Heffernan brought suit in federal court, contending that the city violated his First Amendment rights to free speech and freedom of association. After lengthy proceedings, the district court upheld his firing, and that ruling was affirmed by the U.S. Court of Appeals for the Third Circuit in January 2015. Heffernan v. City of Paterson, 39 IER Cases 1105, 2015 BL 14920 (3d Cir. 2015).

Perception Gets No Protection

The problem for Officer Heffernan, according to the Third Circuit, is that the First Amendment only protects a person’s actual speech or political associations. Since Heffernan was not affiliated with Spagnola’s campaign and never spoke out in his favor, the First Amendment did not apply, regardless of what Heffernan’s supervisors thought he was doing.

Ironically, Heffernan might have been better off if he had actually violated department policy by working for Spagnola’s campaign, since he would have been engaged in constitutionally protected conduct that might have supported a First Amendment lawsuit.

It’s worth noting that the Sixth Circuit has taken a contrary position when it comes to freedom-of-association claims, holding that an employer’s mere assumption about an employee’s political affiliation is enough support a First Amendment claim. Dye v. Office of the Racing Comm’n, 702 F.3d 286, 34 IER Cases 1230, 2012 BL 330449 (6th Cir. 2012).

The Third Circuit in Heffernan disagreed with the Sixth Circuit’s analysis in Dye, but this split of authority possibly paves the way for the U.S. Supreme Court to address the issue in the future.

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