The Supreme Court of the United States has historically taken a very narrow view of the free speech protections afforded to public-sector employees under the First Amendment to the Constitution.  It has generally held that public-sector employee speech or political activity is protected only if (1) they spoke as a citizen, rather than within the auspices of their official duties; (2) they spoke on a matter of public concern; and, (3) their right to speak on that matter outweighed the government’s interest in curbing their speech to provide effective government service to citizens.  Public-sector employees have, more often than not, lost under this framework, most pointedly where there is any kind of concern that the wrong precedent will allow public-sector employees to gum up the public workplace with disruptive speech.  (Note that private-sector employees, who do not enjoy the protections of the Constitution absent governmental action, have even less free speech protection than public-sector employees.)

The Supreme Court’s most recent free speech opinion suggests that the winds of free speech protections may be changing in favor of public-sector employees.  In Heffernan v. City of Paterson, the Court examined whether a public-sector employee may challenge an adverse employment action under the First Amendment when he doesn’t actually engage in any protected speech or activity.  It held in the affirmative, expanding free speech protection to public-sector employees who suffer adverse employment actions because their employer incorrectly perceived that they had engaged in speech or activity protected by the First Amendment.

The Facts

The plaintiff in Heffernan was a police officer in Paterson, New Jersey, who worked in the office of the Chief of Police, James Wittig.  At the time of the suit, the Mayor of Paterson, Jose Torres, was running for re-election.  Mr. Torres had appointed Mr. Wittig and the plaintiff’s immediate supervisor.  Plaintiff was, however, a good friend of Mr. Torres’s opponent, Lawrence Spagnola.

During the campaign, the plaintiff’s bedridden mother requested that he pick up a large Spagnola sign, as her sign had been stolen from her front yard.  The plaintiff went and picked up a sign at a Spagnola distribution point.  While he was there, he talked to Mr. Spagnola’s campaign staff.  Other members of the police force saw him doing this with his mother’s sign in hand.  Word of this quickly spread throughout the force.  The next day, the plaintiff was demoted by his superiors from detective to a patrol officer in punishment for what his supervisors mistakenly believed was the plaintiff’s support of Mr. Spagnola’s campaign.  The plaintiff then sued under 42 U.S.C. § 1983, alleging that he had been demoted in violation of the First Amendment because he had engaged in conduct that, in his employer’s mind, constituted protected speech.

The Holdings

The district court held that the plaintiff had not engaged in protected First Amendment conduct and, therefore, could not prevail on his claim.  The Third Circuit Court of Appeals agreed, noting that free speech retaliation is only actionable under § 1983 when the retaliation is prompted by actual, rather than perceived, exercise of free speech.  The Supreme Court disagreed, holding in a 6-2 opinion that an employer’s unlawful motive may serve as a basis for a free speech retaliation claim, even if the employer retaliated against the employee because it mistakenly believed that the plaintiff engaged in protected free speech.

The Analysis

The Court distinguished precedent that placed emphasis on a showing that the plaintiff actually spoke as a citizen on a matter of public concern, noting that such precedents “did not present the kind of question at issue.”  In those cases, the Court found there was no factual mistake about whether the employee engaged in free speech; the only issue in those cases was whether the undisputed reason for the adverse action was speech that was protected by the First Amendment.

Instead, the Court looked to a 1994 case, Waters v. Churchill, for guidance.  In Waters, the Court held that a public-sector employer does not violate the First Amendment by taking an adverse employment action based on employee speech that it reasonably, but mistakenly, believes was a matter of personal – rather than public – concern, and therefore not protected speech.  The essence of this holding, the Court noted, was that it is the employer’s motive and the facts as the employer reasonably believes them to be that matter for purposes of liability in free speech retaliation suits.

Applying the same principal, the Heffernan Court held that employers who take adverse employment actions based on a reasonable belief that an employee has engaged in protected speech or activity may be held liable, even if the employee has not, as a matter of fact, engaged in such speech or activity.  Ruling otherwise, the Court observed, would risk chilling the speech of employees actually engaged in political activity protected by the First Amendment, where an employer has taken an adverse employment action because of perceived First Amendment activity.

The Lessons

At bottom, the Supreme Court’s Heffernan decision presents two takeaways for public employers.  First, motives matter, even under the First Amendment.  If you are taking an adverse employment action because of an employee’s political activity – or perceived political activity – you are in dangerous territory and should seek counsel before you go through with anything.

Second and more generally, Heffernan, although a narrowly drawn decision, marks a shift toward affording more robust protection of public-sector employees’ First Amendment rights.  This seems evident in the manner in which the Court (six of the Justices) completely sidestepped the first prong of the ordinary free speech framework – i.e., whether the plaintiff actually spoke as a citizen on a matter of public concern.  Only time will tell whether the Court will further expand the free speech rights of public-sector employees.  If Heffernan is merely an outlier, it probably won’t be too tough a pill for employers to swallow.  Because of the unique facts at issue in Heffernan and the practical difficulty of proving perceived political activity and an improper employer motive, which the Court said will require evidence of “more than the conduct of the [plaintiff-employee],” it is unlikely that the flood gates have been let open.  But, we’ll see.

Ben concentrates his practice in the area of labor and employment law, counseling employers and litigating cases under various state and federal employment laws.
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