When Free Speech Collides with Policies

"When Free Speech Collides with Policies," also appeared in the September/October 2016 issue of Cities & Villages magazine.

Is a government employer permitted to discipline an employee for behavior it believes an employee has engaged in? What if that employer is mistaken about said behavior? And what happens when the behavior is potentially constitutionally protected political activity? Unfortunately, these are scenarios that occur more often than many people might believe.

A recent United States Supreme Court case—Heffernan v. City of Paterson, New Jersey—sheds some light on how the courts view these issues.

In 2005, Heffernan was a detective reporting to the Police Chief in the Paterson Police Department. The Chief and Heffernan's direct supervisor were appointed to their positions by the incumbent Mayor who was facing a challenge for his reelection from Lawrence Spagnola. Although Spagnola and Heffernan were "good friends", Heffernan was not involved with the re-election campaign.

As a favor to his bedridden mother, Heffernan went to a distribution point to pick up a larger Spagnola sign to replace a smaller one stolen from her yard. While there, Heffernan spoke with Spagnola's campaign manager and staff. Other members of the Paterson police force saw Heffernan with the sign in hand and observed him talking with the campaign staff and, of course, the word spread quickly throughout the department.

Heffernan was demoted from detective to patrol officer the next day and assigned a "walking post," clearly as punishment for what appeared to be "overt involvement" in Spagnola's campaign. Since Heffernan was not involved in the campaign, but rather was picking up the sign for his mother, his supervisors made a factual mistake.

Heffernan sued the City in federal court claiming that his demotion was a violation of his First Amendment right to free speech and was in response to mistaken conduct. This raises multiple legal issues.

Generally, an employee cannot be subject to adverse employment action for supporting a particular political candidate. However, both the U.S. District Court and the Third Circuit Court of Appeals found that Heffernan was not deprived of his First Amendment right to free speech because he had not claimed to have engaged in any speech that could be protected and such action must be based on an "actual, rather than perceived exercise of constitutional rights." Heffernan appealed the decision to the United States Supreme Court.

In reversing the Third Circuit Court of Appeals and remanding the case, the Supreme Court focused on the City's reason for demoting Heffernan - the belief that he engaged "in political activity that the First Amendment protects." The Court looked at the employer's reason for the demotion, not the fact that the employer was wrong about the type of activity being engaged in by the employee. The employee's unassailable assertion that he was not involved in the campaign and not actually exercising speech did not matter. Of importance to the Court was the fact that the employer thought the employee was engaged in protected political activity stating "the government's reason for demoting Heffernan is what counts here." The Court found that the demotion did deprive Heffernan of a right "secured by the Constitution."

Justice Breyer, writing for the majority, noted that "[T]he discharge of one tells the others that they engage in protected activity at their peril." The Court found that, if an employer thinks the employee has engaged in protected activity, whether or not the employer is correct or mistaken, can cause "the same kind, and degree, of constitutional harm."

Since there was some evidence that the adverse employment action against Heffernan was based upon a "different and neutral policy prohibiting police officers from overt involvement in any political campaign," the case was sent back to the lower court to decide the constitutionality of that policy and the employer's actions.

As this case demonstrates, government employers should exercise caution in taking action against employees where First Amendment issues may be involved. Consultation with legal counsel prior to taking action where an employee's First Amendment rights may be involved could avoid costly litigation down the road.

Sara Fagnilli can be reached at 216-928-2958 or e-mail sfagnilli@walterhav.com.