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:
- the speech was a matter of public concern; and
- 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.
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