Monday, January 26, 2015

Third Circuit on Public Employees, Free Speech, and Mistakes of Fact

This is my snow-shoveling half-time break:

A New Jersey police officer picked up a campaign yard sign for a mayoral candidate. A fellow police officer spotted him in the act. The next day, one of his supervisors confronted him about supporting this candidate, and the officer was immediately demoted to "walking duty." This sounds like a pretty good First Amendment retaliation case, huh?

Nope. It turns out it isn't. The Third Circuit issued its opinion in Heffernan v. City of Paterson last week. The police officer was picking up a campaign sign . . . but he was picking up the campaign sign for his bedridden mother. He testified that he was not "politically involved" and had no intention of conveying a particular political message. Therefore, he did not engage in protected free speech. And he was not actually affiliated with the campaign at all (goodbye, free association claim).

But wait . . . are you telling me that a public employer can retaliate against an employee for supporting a political candidate if it turns out they're wrong about his actual support? Pretty much. The Court expressly rejected this "perceived support" theory ("where the employer’s retaliation is traceable to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right.").

Game over. Employer wins, employee loses.