Opinion analysis: Improper motive can violate the First Amendment, even with a factual mistake
on Apr 26, 2016 at 4:59 pm
Heffernan v. City of Paterson reduces to a simple question: is “[d]emoting a dutiful son who aids his elderly, bedridden mother” merely callous? Or, when based on an erroneous factual belief about what the dutiful son was doing, does it also violate the First Amendment? Writing for a six-person majority, Justice Stephen Breyer concluded it is unconstitutional, granting at least a temporary victory, and an opportunity for further litigation, to demoted police officer Jeffrey Heffernan. Dissenting, Justice Clarence Thomas, joined by Justice Samuel Alito, insisted Heffernan’s demotion was merely callous and perhaps “misguided or wrong,” but not unconstitutional.
In the simplified version of the facts on which the Court relied, Heffernan was demoted from his position as a detective in the office of the chief of police after fellow officers saw him holding a yard sign and speaking with campaign workers for the challenger in the Paterson, N.J., mayoral race. Although the challenger was a good friend of his, Heffernan was not involved in the campaign (and, as a non-resident of Paterson, was not even eligible to vote in the election); he was picking up a sign for his bedridden mother, whose sign had been stolen from her yard. Nevertheless, he was demoted the following day because of his “overt involvement” in the challenger’s campaign, although his supervisors were mistaken about that involvement.
Section 1983, the federal statute that provides a cause of action for damages for constitutional violations by state and local governments and officials, permits suit by a person who is “deprive[d]” of a “right, privilege, or immunity secured by the Constitution.” The question here was the scope and nature of the First Amendment right at issue – whether the focus was on the plaintiff’s activity or instead on the defendant’s reasons for acting, accounting for what officials believed to be the facts and their motive in response to those perceived facts.
The majority concluded that it was the employer’s reasons – the motive and the facts as the employer reasonably understood them – that matter. In Waters v. Churchill, the Court had held that a government employer did not violate the First Amendment by dismissing an employee when the employer reasonably believed the employee’s speech involved solely personal matters (such that the firing would not run afoul of the First Amendment) and acted on that mistaken belief. This case presented the inverse – the employer mistakenly believed that Heffernan had engaged in protected First Amendment activity, such that the employer knew the demotion might violate the First Amendment. If motive mattered in Waters, it also mattered here: “After all, in law, what is sauce for the goose is normally sauce for the gander.”
Breyer made three points in support of this rule. First, it more closely tracks the First Amendment’s text, focusing on the government’s “laws” (in this case, the employment decision and its rationale) and whether they “abridge” the freedom of speech by harming an individual. Second, this rule better serves the purposes of First Amendment limits on political patronage – preventing government officials from discouraging employees, both those discharged and her colleagues, from engaging in constitutionally protected activities. The same constitutional harm, in degree and kind, arises from any adverse employment action grounded on a belief that the employee was engaged in protected activity – whether that belief does or does not rest on a factual mistake. Third, this rule will not impose significant costs on the employer, since the rule requires the plaintiff to prove a more complicated and expensive claim, a burden that falls largely on the plaintiff bringing the claim. All three points lead to the conclusion that Heffernan’s rights were violated – he was demoted because of his supervisor’s beliefs that he had engaged in constitutionally protected conduct, and that demotion would discourage him, and his colleagues, from even appearing to engage in such conduct in the future.
Notably, Heffernan’s victory may be only momentary. In resolving the main First Amendment issue, the Court assumed that Heffernan was demoted specifically because (his supervisors believed) he was speaking in support of the challenger in the mayoral election. But there was some evidence that he was demoted not because of his perceived expression of political support for this candidate, but pursuant to a neutral office policy prohibiting all police officers from any overt involvement in any political campaign. The Court expressed no views on whether there was such a policy, whether the city followed it in demoting Heffernan, or whether it would be constitutionally valid. It remanded for the lower courts to address those questions, as the United States had urged as an amicus in support of the city.
Thomas’s dissent similarly began with the text of Section 1983 and the requirement that the plaintiff be deprived of a constitutional right. But, he argued, no deprivation occurred in this case. Because Heffernan, by his own admission, did not speak or attempt to speak on a matter of public concern or in support of a political candidate, he was not deprived of a First Amendment right. Nor could Heffernan prevail by asserting his right not to speak or associate with the campaign, since it was his perceived association with the campaign, not his non-association with it, that caused his demotion. Thomas reduced Heffernan’s case to a claim “that the City tried to interfere with his constitutional rights and failed” because he was not exercising those rights; this is the equivalent of a factually impossible attempt. But there are neither “attempted torts” nor attempted constitutional violations, only actual ones.
In Thomas’s view, the majority’s focus on the government’s reasons for demoting him did not rescue Heffernan’s claim. Section 1983 provides a cause of action only for unauthorized acts that infringe constitutional rights, not for all acts that cause harm. That government acted unconstitutionally does not necessarily mean it violated the constitutional rights of any particular individual. Thomas offered an example of a (clearly unconstitutional) law authorizing police to arbitrarily stop any vehicle to check for license and registration; a motorist who was not stopped pursuant to that policy, although perhaps harmed by having to wait longer in traffic while others were stopped, would not have a valid Section 1983 claim because that harm did not amount to a violation of his right against unreasonable seizure. Similarly, Heffernan did not suffer the “right kind of injury” from his demotion, Thomas maintained, because his right to speak or assemble was not violated, since he was not speaking or assembling.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm.]