When navigating legal disputes that intersect with constitutional rights, understanding the legal standards that govern these cases is important. 

One such area of litigation involves 42 U.S.C. § 1983 First Amendment retaliation claims, which arise when an individual alleges that a government employer retaliated against him or her for exercising his or her constitutional right to free speech under the Federal Constitution’s First Amendment. While these claims are often litigated in employment contexts, they can also be relevant in other disputes involving public entities. Notably, constitutional violation claims may be asserted against only government agents, also known as state actors. Employees of private businesses generally cannot assert such claims against their employers. 

The Legal Standard for a Section 1983 First Amendment Retaliation Claim 

Unlike traditional employment discrimination claims under Title VII, Section 1981, or the New York State Human Rights Law (NYSHRL), a Section 1983 First Amendment retaliation claim requires a plaintiff to prove three key elements: 

1. Protected speech or conduct – The plaintiff must show that he or she engaged in speech or conduct protected by the First Amendment. This often includes raising concerns about workplace discrimination, misconduct, or other matters of public concern. 

2. Adverse employment action – The plaintiff must demonstrate that he or she suffered a negative employment action, such as termination, demotion, non-trivial change in responsibilities, or another form of retaliation. 

3. Causal connection – There must be a link between the plaintiff’s protected speech and the employer’s adverse action, showing that the speech was a motivating factor in the retaliation. 

Who Decides the Facts and Law? The Role of the Jury and the Court 

In these cases, the jury and the court each play distinct roles in determining the outcome. 

Jury's Role: Determining the Facts 

Before the court makes legal determinations, the jury is often tasked with answering key factual questions, including: 

• Was the plaintiff’s complaint made in good faith? Did the plaintiff genuinely believe that he or she was reporting unlawful workplace discrimination? 

• Was the complaint substantially true? If the plaintiff made statements about discrimination, did those statements have factual support? 

• If not, did the plaintiff act with reckless disregard for the truth? If a complaint was inaccurate, the jury must decide whether the plaintiff knowingly made false claims or had no reasonable basis for the statements. 

These factual determinations provide the foundation for the court’s legal analysis. 

Court's Role: Applying the Law 

Once the jury resolves factual disputes, the court must decide two critical legal questions: 

1. Was the speech a matter of public concern? Courts generally find that workplace discrimination complaints can be matters of public concern if they address broader systemic issues rather than purely personal grievances. 

2. Does the employer’s interest in avoiding disruption outweigh the plaintiff’s free speech rights? Even if an employee engages in protected speech, a public employer may argue that their actions were necessary to maintain workplace efficiency and discipline. The court weighs these competing interests before making a final determination. 

The Burden of Proof 

To succeed in a First Amendment retaliation claim, the plaintiff must prove by a preponderance of the evidence (meaning it is more likely than not) that his or her speech was a motivating factor in the employer’s retaliatory action. 

However, if the plaintiff meets this burden, the defendant (the employer) has an opportunity to rebut the claim by proving that it would have taken the same action complained of, regardless of the plaintiff’s speech. If the employer cannot provide convincing evidence of this, the plaintiff’s constitutional rights may be deemed violated. 

Why This Matters  

Whether you are facing retaliation for exposing misconduct or defending against a claim, having experienced litigators who understand both the legal nuances and the strategic implications is critical. 

At The Glennon Law Firm, P.C., we are committed to providing sophisticated, high-level representation in complex litigation matters. If you believe your constitutional rights have been violated or need strategic defense in a litigation matter, contact our firm to discuss your case. 

You may learn more about us and how we operate by visiting these pages: About Us and What Sets Us Apart. 

This post is not intended as legal advice, but rather for educational purposes.