Campaigning That Wasn't: Heffernan v. City Of Paterson

The Supreme Court Addresses a Factual Wrinkle to First Amendment Speech and Public Employee Retaliation Cases

In this politically charged post-election environment, the free speech rights of public employees take on added importance. In 2006, the Supreme Court provided a framework for public employee speech with its decision in Garcetti v. Ceballos,1 holding there is no First Amendment protection for the speech of public employees on matters within the scope of their employment. The Court distinguished that from employee speech outside of their official duties on matters of "public concern."2 The Supreme Court's decision in Heffernan v. City of Paterson this past term adds a factual wrinkle to the principles enunciated in the Garcetti body of jurisprudence.

This article examines the Heffernan decision and its implications for the protection of free speech for public employees.

The Garcetti Framework and First Amendment Public Employee Speech

Prior to Garcetti, under the longstanding Pickering-Connick test (from the Supreme Court cases Pickering v. Board of Education3 and Connick v. Myers4), whether employee speech was entitled to First Amendment protection was subject to a balancing of interests analysis: the government could not discipline (or terminate) an employee based on an employee's speech if both of the following were true:

the speech was a matter of public concern; and the damage, if any, to the efficiency of the workplace caused by the employee's speech was outweighed by the value of the speech to the employee and to the public. Public employee whistleblowers, for example, were protected for statements made in good faith identifying misconduct or other legitimate issues of public concern within the government. Garcetti, as we noted at the time,5 marked a substantial and potentially troublesome doctrinal shift.

In Garcetti, Richard Ceballos, an attorney employed in a supervisory role by the Los Angeles County District Attorney's Office, discovered what he believed to be material misrepresentations in a police officer's affidavit. Ceballos relayed his concerns to his supervisors (both orally and in two written memoranda), who seemingly disregarded Ceballos' reports of potential wrongdoing. Ceballos filed suit after he was demoted and transferred to a different office, claiming his demotion and transfer had occurred because of his speech.

Instead of applying the Pickering-Connick balancing of interests analysis, the Garcetti Court...