Introduction

You work for the government, and you have just been summoned to a disciplinary meeting. Your boss, a Democrat facing reelection, suspects that you support her Republican challenger. She cannot know this for certain—you have never admitted your political affiliation or openly endorsed her opponent. Rather, in an office splintered by partisan politics, she merely perceives you and your closest coworkers as rightward leaning. In return for this purported disloyalty, you receive a pink slip.

You sue the government, confident that you have a winning First Amendment case. At your deposition, government lawyers bombard you with questions: Did you actually support the Republican candidate? No. Did you ever donate money to his campaign? No. Did you put a Republican campaign sign in your yard or a Republican bumper sticker on your car? No and no. And did you ever tell anyone at work about your political views or which candidate you supported? No.

Your denials in hand, the government moves for summary judgment. Applicable circuit law requires plaintiffs to have actually engaged in the protected conduct at issue before the conduct may form the basis of an actionable First Amendment retaliation claim. The court grants the government’s motion, reasoning that perceived political affiliation, without more, does not satisfy this standard. Your boss evades liability while you fail to obtain any redress. You were fired for all the wrong reasons, but it seems as though your claim has slipped through the doctrinal cracks.

Public employees who suffer adverse employment consequences for exercising their free speech rights may file suit under the First Amendment retaliation doctrine. Claimants typically must first prove that they engaged in protected conduct and then prove that such conduct causally contributed to the adverse action.4 An emerging line of cases explores the scenario described above, in which an employer retaliates based solely on his or her perceptions of an employee’s political loyalties. As actual affiliation may be lacking, these cases confront courts with a pressing doctrinal question: Must employees prove actual affiliation with the party or candidate in question to prevail on a First Amendment retaliation claim, or does perceived affiliation alone suffice?

While the First, Sixth, and Tenth Circuits have permitted perceived-affiliation claims, the Third Circuit has barred such actions. According to the Third Circuit, constitutional protection presumes the existence of actual protected conduct in the first place. Accordingly, for claims based solely on perceived affiliation, the absence of affirmative conduct is necessarily fatal.

This Comment advocates a less formalistic reading of the First Amendment retaliation doctrine’s “conduct” requirement. While speech necessarily entails readily observable manifestations, the same cannot be said of affiliation. The latter is more accurately viewed as encompassing one’s closely held beliefs and allegiances. Consequently, the fact that individuals exercise these freedoms in distinct ways counsels for adopting more tailored standards.

Further, this Comment notes that perceived-affiliation firings resemble political patronage dismissals. Critically, the democratic values animating the Supreme Court’s patronage jurisprudence also underlie the First Amendment’s associative protections. Thus, while speech claims may be poor comparators, this Comment argues that the Court’s political patronage teachings ought to inform resolution of the perceived-affiliation split.

 

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