United States: Campaigning That Wasn't: Heffernan v. City Of Paterson

The Supreme Court Addresses a Factual Wrinkle to First Amendment Speech and Public Employee Retaliation Cases

In this politically charged post-election environment, the free speech rights of public employees take on added importance. In 2006, the Supreme Court provided a framework for public employee speech with its decision in Garcetti v. Ceballos,1 holding there is no First Amendment protection for the speech of public employees on matters within the scope of their employment. The Court distinguished that from employee speech outside of their official duties on matters of "public concern."2 The Supreme Court's decision in Heffernan v. City of Paterson this past term adds a factual wrinkle to the principles enunciated in the Garcetti body of jurisprudence.

This article examines the Heffernan decision and its implications for the protection of free speech for public employees.

The Garcetti Framework and First Amendment Public Employee Speech

Prior to Garcetti, under the longstanding Pickering-Connick test (from the Supreme Court cases Pickering v. Board of Education3 and Connick v. Myers4), whether employee speech was entitled to First Amendment protection was subject to a balancing of interests analysis: the government could not discipline (or terminate) an employee based on an employee's speech if both of the following were true:

  1. the speech was a matter of public concern; and
  2. the damage, if any, to the efficiency of the workplace caused by the employee's speech was outweighed by the value of the speech to the employee and to the public.

Public employee whistleblowers, for example, were protected for statements made in good faith identifying misconduct or other legitimate issues of public concern within the government. Garcetti, as we noted at the time,5 marked a substantial and potentially troublesome doctrinal shift.

In Garcetti, Richard Ceballos, an attorney employed in a supervisory role by the Los Angeles County District Attorney's Office, discovered what he believed to be material misrepresentations in a police officer's affidavit. Ceballos relayed his concerns to his supervisors (both orally and in two written memoranda), who seemingly disregarded Ceballos' reports of potential wrongdoing. Ceballos filed suit after he was demoted and transferred to a different office, claiming his demotion and transfer had occurred because of his speech.

Instead of applying the Pickering-Connick balancing of interests analysis, the Garcetti Court put a thumb on the scale and drew a clear line between protected and unprotected speech, reasoning that the government's interest in providing efficient public services outweighs the First Amendment rights of public employees speaking in their official capacities. Because Ceballos was speaking in his official capacity as an employee, his speech was not protected.

Subsequent to Garcetti, the Court softened a bit in Lane v. Franks,6 particularly on whistleblowers, holding that the First Amendment protected a government employee who testified truthfully pursuant to a subpoena about government corruption. But Garcetti fundamentally changed the focus of the First Amendment inquiry to the circumstances surrounding the speech in question, and particularly whether the speech is made in an employee's official capacity. In the years since Garcetti, lower courts typically have looked, as a threshold matter, to whether the content of the speech is the type made by an employee as a "citizen" on a matter of public concern or whether the speech was made in his or her capacity as a government employee.

Heffernan v. City of Paterson: Focus on Employer Motive?

In Heffernan¸ Detective Jeffrey Heffernan, a veteran police officer in Paterson, New Jersey, was supervised by an individual appointed by the mayor as well as by the chief of police, who was also appointed by the mayor. The mayor was running for re-election. During the campaign, Heffernan's bedridden mother asked him to pick up and deliver to her a campaign yard sign supporting the mayor's opponent. Heffernan was spotted holding the sign and speaking to staff at a distribution point for the opposing candidate; word spread that he was campaigning against the mayor, though he was not. He was demoted the next day for "overt involvement" in the opponent's campaign and thereafter brought suit alleging a violation of the First Amendment under 42 U.S.C. § 1983.

The key issue was whether Heffernan, a public employee, could maintain an action for constitutionally-protected political activity when he did not actually engage in that activity. Was the First Amendment right in this context one that focused on the actual activity, or a right that focused on the employer's motive?

Writing for a six-person majority, Justice Breyer concluded that the City's unconstitutional motive to retaliate was what mattered. As Justice Breyer explained: "Unlike, say, the Fourth Amendment, which begins by speaking of the 'right of the people to be secure in their persons, houses, papers and effects....,' the First Amendment [Congress shall make no law...abridging the freedom of speech] begins by focusing upon the activity of the Government." Moreover, a permissible discharge of Heffernan would have sent a signal to others that they engage in protected activity at their peril. Even if Heffernan had not actually engaged in the protected political activity, the demotion served to deter other employees from engaging in such protected behavior. Thus, the Court found, an employer's improper motive can violate the First Amendment, even when that improper motive is based on a factual mistake.

The dissent, by Justice Thomas and joined by Justice Alito, noted the anomalous result of the Court's attempting to protect political speech, when none actually occurred. The demotion may have been "misguided or wrong," but, to their mind, was not unconstitutional.

Does Heffernan Signal a Motive-Based Model for First Amendment Public Employee Cases?

It remains to be seen whether Heffernan is a factual anomaly or represents a shift in the Garcetti line of First Amendment public employee cases. The facts are rather unique. But the focus in Heffernan, unlike the focus in Garcetti and its progeny, is on the motivations of the government in taking its adverse action, rather than the content of the speech at issue. And motive alone in Heffernan was sufficient to show constitutional injury. Focusing on illicit intent, rather than the character of the speech, would suggest a more fact intensive inquiry and a step away from the bright-line test articulated in Garcetti. Yet, it remains to be seen whether lower courts will adopt a motive-based model for First Amendment public employee cases.

Indeed, the facts of Heffernan are not completely resolved. The Court assumed that Heffernan was demoted specifically because his supervisors believed he was speaking in support of the challenger in the election. But there was some evidence that he was demoted pursuant to a neutral office policy prohibiting all police officers from any overt involvement in any campaign. The Court expressed no view on whether there was such a policy, whether the City followed it in demoting Heffernan or whether it would be constitutionally valid. It remanded to the district court to answer those questions.

One additional point merits mention. The Hatch Act, which prohibits partisan political activities by federal civil service employees, has been upheld by the Supreme Court as constitutional in Civil Service Commission v. Letter Carriers.7 But it is unclear (particularly since the decision is now over 30 years old) how broadly the contours of that decision reach and whether a blanket prohibition would still be permissible.

Post-Garcetti it is clear that at least certain speech by employees speaking as citizens is protected speech in the public employment context. And perhaps even more relevant to the Court's current docket and more specific to political speech, the agency-fee cases of Knox v. SEIU8 and Harris v. Quinn9 rely on the fundamental foundation that government employees have a First Amendment right not to engage in politics in the workplace.

Unless the Court reverses course on a Friedrichs-type case (see our article "With America's Attention on Supreme Court Nomination, Congress Pushes Federal 'Right-To-Work' Bill," in this issue of Stroock Reports: Public Employee Law) – a questionable eventuality with the new administration – there well could be doctrinal inconsistency in reading the Hatch Act to prohibit all political speech in the public employee workplace.


1 547 U.S. 410, 418 (2006). See our discussion of the Garcetti decision in "Garcetti v. Ceballos Two Years Later: How Are Public Employees Faring?" Stroock Reports: Public Employee Law, May 2008, available at http://www.stroock.com/siteFiles/Pub611.pdf.

2 Elrod v. Burns, 427 U.S. 347 (1976).

3 391 U.S. 563 (1968).

4 461 U.S. 138 (138).

5 See our discussion of the Garcetti decision in "Garcetti v. Ceballos Two Years Later: How Are Public Employees Faring?" Stroock Reports: Public Employee Law, May 2008, available at http://www.stroock.com/siteFiles/Pub611.pdf.

6 134 S. Ct. 2369 (2014).

7 413 U.S. 548 (1973).

8 567 U.S. 30 (2012).

9 134 S. Ct. 2618 (2014).  


Co-Editors: Alan M. Klinger, co-managing partner, and Dina Kolker, special counsel in Stroock's Litigation and Government Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, special counsel, and David J. Kahne and Arthur J. Herskowitz, associates, in Stroock's Litigation and Government Relations Practice Groups.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.