U.S. Supreme Court to Consider NJ First Amendment Case


Stamp or label with text Paterson, New Jersey insideAs if it weren’t challenging enough to hold public office in New Jersey, the Supreme Court of the United States may make it even more difficult if they reverse the Third Circuit Court of Appeals in Heffernan v. City of Paterson.

The case involves the question of whether the city violated the First Amendment rights of a veteran police officer by demoting him based on the allegation that his superiors mistakenly believed that he supported the mayor’s political opponent.

Political retaliation cases are often brought as a Hail Mary Pass to defend bad employees against disciplinary charges or termination for cause.  If the Supreme Court allows mere “belief” of political speech activity rather than evidence of actual political speech for a political retaliation claim, the added legal costs and the exposure to elected officials who discipline or terminate an employee may far outweigh the value of doing so.

More simply put, if the United States Supreme Court overturns the Third Circuit Court of Appeals in this case, then elected officials not only need to worry about what their subordinates DO, they need to worry about what their subordinates THINK.

The Facts of the Case

In 2006, Jeffrey Heffernan, a veteran Paterson police officer, was observed obtaining a campaign sign for Lawrence Spagnola, a former police chief who was running against the incumbent Mayor Jose Torres in that election. Heffernan was demoted.  Even though Heffernan admitted that he was not involved in the 2006 Mayoral campaign in any way, he sued the City of Paterson for political retaliation.

Heffernan’s lawyer brought the case under 42 U.S.C. § 1983 against the City of Paterson and several government officials. The suit alleged claims for (1) retaliatory demotion based on Heffernan’s exercise of the right to freedom of speech, and (2) retaliatory demotion based on his exercise of the right to freedom of association. The trial court dismissed the case.

The Third Circuit Court’s Decision

The Third Circuit Court of Appeals affirmed the dismissal, concluding that a public employee must provide some evidence that he or she actually exercised his or her constitutional rights in order to sustain a retaliation claim. In support of its decision, the panel cited Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997), in which the court disallowed claims of retaliation based only on the perceived exercise of those rights.

The Third Circuit acknowledged that the First Amendment generally prohibits a public employer from taking an adverse action against an employee who speaks out on a matter of public concern. However, in Heffernan’s case, it determined that there was no evidence that his conduct was an expression of support for the mayoral candidate. In support of its conclusion, the appeals court cited that Heffernan repeatedly denied any intent to convey a particularized message and disavowed any affiliation with the 2006 political campaign other than the cursory contact associated with picking up the sign for his mother.

The Third Circuit similarly rejected Heffernan’s perceived support theory, under which he argued that an actionable retaliation claim exists when the employer’s action can be traced to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right. As noted by the court, “That argument is squarely foreclosed by our own binding precedent, which holds that a free-speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.”

The Issues before the Supreme Court

In his petition for certiorari, Heffernan argued that the Third Circuit’s decision “drastically curtails the First Amendment rights of government employees.” His attorneys, who include UCLA law professors Stuart Banner and Eugene Volokh, argued that if the Third Circuit rule is allowed to stand “then any public employee can be constitutionally fired because her supervisor incorrectly believes she is a Democrat or a Republican. Employees have to worry about saying the wrong thing at the office, for fear of leaving the boss with the wrong impression.”

The Supreme Court granted certiorari on October 1, 2015. The justices agreed to consider the following question: “Does the First Amendment prohibit the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate?”

The case has not yet been scheduled for oral argument, but will most likely be heard during the Court’s January sitting.

The question is whether the First Amendment protects a non-exercise of free speech activity just because other people believe you are engaging in a free speech activity.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

U.S. Supreme Court to Consider NJ First Amendment Case