So we had a little hiatus from blogging because I was teaching a class at the U. of Maine Law School. That teaching exercise was, using technical lingo, a Giant Time Suck. My hats off to anyone and everyone in education who do this year after year. Phew!
But with the class done, let us return to the blog-o-sphere and the sexiest of all legal topics, the First Amendment.
With some exceptions, if you are employed by the government, your employer cannot fire you because you are engaged in protected expressive conduct. The Supreme Court today ruled that it is actionable under the Civil Rights Act, 42 U.S.C. §1983, if the government employer fires you because it believes mistakenly that you engaged in such protected conduct. Heffernan v. City of Paterson, Docket 14‑1280 (opinion by Breyer, J; Justices Thomas and Alito dissenting). Heffernan is the flip side of an earlier plurality decision, Waters v. Churchill, 511 U.S. 661 (1994) (opinion by Justice O’Connor), in which the plurality ruled that it was not a violation of Section 1983 if the government employer fired an employee under the reasonable belief that the employee was not engaged in protected conduct, even if the employee was in fact so engaged.
The common trait of these two decisions is that liability is based on intent. Does that make sense? It certainly does from a deterrence perspective. But don’t we also want to provide a remedy for someone who was punished for protected conduct? If an employer fires someone engaged in protected conduct, but mistakenly thinking that the employee was not so engaged, then the employee is still getting fired.
Justice O’Connor applied a reasonableness standard in Waters, so the intent test isn’t subjective – the employer’s belief that the conduct wasn’t protected must be reasonable. Should that make a difference? Why? (Oh no, I just can’t stop the Socratic thing …).
Justices Thomas and Alito dissented in Heffernan because they took a very text-focused approach and said, “hey, the statute says you have to be deprived of a constitutional right.” (Can you tell that I’m paraphrasing?) If you aren’t actually engaged in the exercise of a constitutional right, then the defendant isn’t depriving you based on that exercise. Justice Thomas said:
“The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured. Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U. S. 648, 661 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a §1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury. They must allege, instead, that their injury amounted to a violation of their constitutional right against unreasonable seizures—that is, by being unconstitutionally detained.
Here too, Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. Accordingly, he is not entitled to money damages under §1983 for the nonviolation of his First Amendment rights.”
Why didn’t the majority go for that approach? Justice Breyer’s opinion roams around, but basically, it seems to me, that it’s because we as a society focus more on culpability as a basis for liability. If you got fired, and the defendant fired you for a bad reason, then we think that’s wrong, whether the reason turned out to be accurate or not.