What some might charitably consider a loophole in First Amendment protections of public employees received deferential treatment recently by the Third Circuit. In what seems like an upside-down scenario, the Third Circuit upheld the ability of a public employer to fire an employee for speech that he or she did not actually speak, while that employee likely would have had a claim against his or her employer had he or she actually engaged in the speech that didn’t take place. This confusing result is not the first of its kind, either, and public employees are now on uncertain ground as to whether what they don’t say can be used against them.

In Heffernan v. City of Paterson,^[1] a police officer stopped by the campaign headquarters of the former chief of police to pick up a yard sign for his bedridden mother. Not only was the sign not for himself, but he did not even live in the jurisdiction of the election. Nevertheless, a fellow officer spotted him leaving the headquarters with sign in tow and reported the officer’s “overt involvement” with the campaign to unseat the current mayor. He sued the city under a § 1983 action,^[2] claiming the firing was a violation of his First Amendment rights of free speech and freedom of association. Both the District Court and the Third Circuit Court of Appeals denied his claim.

The Third Circuit’s reasoning is that the First Amendment only protects the actual speech and actions of an individual. An adverse employment action based only on the perception of the employee’s speech does not violate the employee’s civil rights, as the employee did not actually engage in protected activity. This case follows prior Third Circuit jurisprudence on the subject, but the result could be described as bizarre – the Court upholds the ability of the governmental bad actor as long as the assumptions on which the action was taken were wrong. Mere perception from an outside party that the activity took place is not enough to trigger a violation of a public employee’s civil liberties. The Ninth Circuit, Seventh Circuit and Fifth Circuit have all had similar holdings.

The First, Sixth (which includes Kentucky) and Tenth Circuits have all reached the opposite conclusion, however, setting up a circuit split. In the case of Dye v Office of the Racing Commission,^[3] a group of employees filed a retaliation suit against their former employer who fired them over the misperception that they were of an opposing political bent and supported the employer’s opponent. The Sixth Circuit there accepted the retaliation claim, saying, “An employer that acts upon such assumptions regarding the affiliation of her employees should not escape liability because her assumptions happened to be faulty.”^[4]

The Supreme Court has yet to give the final word on the matter, so public employers and public employees should both tread cautiously in the areas of political speech and affiliation. Perceived speech is currently protected activity in some jurisdictions, clearly not protected activity in others and still others have yet to definitively settle the issue. 

_{[1] Heffernan v. City of Paterson, 39 IER Cases 1105, 2015 BL 14920 (3d Cir. 2015).}

_{[2] Civil Rights Act of 1871 (42 U.S.C. § 1983)}

_{[3] Dye v Office of the Racing Commission, 702 F3d 286, 300–01 (6th Cir 2012)}

_{[4] Id. at 11}