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Does the First Amendment Protect You From the Government’s Intent to Retaliate?

Written by Lawrence Opalewski on February 8, 2016 Category: Constitutional Law, First Amendment, Free Speech

supreme courtMost Americans believe that the First Amendment protects our free speech from government retaliation. And in most cases that belief is generally true. But sometimes cases with strange facts have the potential to produce strange decisions. For example, in a case where the government demoted an employee for his political preferences, the average person would likely think that the employee would have an easy First Amendment win in court. But what happens when the government only intends to discriminate based upon its mistaken view of the employee’s political preference? Does the government’s mistake excuse its intent? This is the question before the Supreme Court in Heffernan v. City of Paterson.

In Heffernan, the plaintiff was a veteran police detective in the city of Paterson, New Jersey. In April of 2006, there was a mayoral campaign in Paterson. The plaintiff’s superiors supported the incumbent. Although the challenger was a friend of the plaintiff’s, the plaintiff did not plan to vote in the election, and was not even eligible to vote since he did not live in the city limits. However, the plaintiff’s mother was eligible to vote and supported the challenger. One day, while off-duty, the plaintiff went to the challenger’s campaign headquarters to pick up a new lawn sign for his mother. A member of the incumbent’s security group happened to see the plaintiff holding the lawn sign. After word had spread to his superiors, the plaintiff was demoted to a walking patrol post because of his supposed support for the challenger.

After his demotion, the plaintiff brought suit in federal court claiming that the demotion violated the First Amendment since it happened in retaliation for the plaintiff supposedly exercising his political First Amendment rights. However, the plaintiff lost at both the district court and again at the Court of Appeals for the Third Circuit. The courts reasoned that since the plaintiff had not actually expressed a political preference, he had not actually exercised his First Amendment rights. And since he had not exercised his rights, he could not bring a successful claim under the First Amendment. In other words, even though the government had explicitly attempted to retaliate against him and violate his First Amendment rights, its mistake as to his political preferences had “saved” the government from liability. Plaintiff appealed to the Supreme Court of the United States. The Court heard oral argument in the case on January 19, 2016.

This is a case where either outcome has the potential to produce unintended consequences. It follows logically that the government could not have retaliated against First Amendment activity if that activity never actually took place. And, as Justice Scalia stated at oral argument, there is, strictly speaking, “no constitutional right not to be fired for the wrong reason.” Further, creating liability based on the government’s mistake has the potential to increase the number of employees claiming they were fired based on retaliation even if they were not engaged in First Amendment conduct.

Even with the potential downsides listed above, the better argument seems to be in favor of greater First Amendment protections. Even though the government was mistaken about the plaintiff’s actions in this case, the intention of retaliating against political activity has the potential to “chill” political activity in the exact same way that unmistaken retaliation does, something forbidden by the First Amendment and case law. Further, excusing misinformed retaliation can create some alarming results. As pointed out by Plaintiff’s attorney, if the government thought two men (one Muslim, and one not Muslim) were Muslim and fired them both for being Muslim, under the Third Circuit’s reasoning, only the man who was actually Muslim would have a First Amendment claim, while the other man would be without recourse despite being fired for the same reason. Finally, the spirit of the First Amendment would seem to favor the plaintiff here as well. The First Amendment prohibits the government from retaliating against protected expression. The fact that the government retaliated based on its own incorrect assumption seems like a strange reason to excuse it. The Court will likely issue a decision before its term ends in June.

The attorneys at Dalton & Tomich, PLC have litigated and won First Amendment cases in state and federal courts around the country. If you feel that your First Amendment rights are being violated, please do not hesitate to contact us. We would be happy to speak with you.

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