Supreme Court Decision Potentially Broadens First Amendment Protections for Public Employees
May 3, 2016
On April 26, 2016, in Heffernan v. City of Paterson, New Jersey, the United States Supreme Court held that where an employer demoted an employee out of a desire to prevent the employee from engaging in protected political activity, the employee can claim violation of his First Amendment rights even if his conduct was not protected by the Constitution.
Plaintiff, Jeffrey Heffernan (“Heffernan”), was employed as a detective by the City of Paterson, New Jersey Police Department (the “Police Department”) and assigned to the Chief of Police. The Chief was appointed by Mayor Jose Torres who, at the time of the events at issue in this case, was running for reelection against Lawrence Spagnola (“Spagnola”). During the campaign, officers of the Police Department saw Heffernan, who was off duty, holding a large Spagnola campaign sign and talking with Spagnola’s campaign workers. The next day, Heffernan was demoted to patrol officer and assigned to a “walking post” based upon the Police Department’s belief that his conduct demonstrated “overt involvement” in Spagnola’s campaign. While Heffernan was a good friend of Spagnola’s, he denied any involvement, support of, or association with Spagnola’s campaign and stated that he retrieved the sign from campaign workers solely for and at the request of his bedridden mother, who supported Spagnola. Heffernan filed a federal lawsuit alleging that his demotion was retaliation in violation of his First Amendment rights.
The trial court’s dismissal of Heffernan’s lawsuit was affirmed by the Court of Appeals for the Third Circuit because Heffernan admittedly did not actually engage in any conduct protected by the First Amendment and it is not enough to claim a violation based upon the Police Department’s perception of his involvement in the Spagnola campaign. The U.S. Supreme Court accepted the case to decide whether the First Amendment prohibits a public employer from demoting a public employee based on a perception that the employee supports a political candidate.
The Supreme Court’s Decision
Generally, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. For purposes of its opinion, the Supreme Court assumed that the activities that the Police Department thought Heffernan engaged in were of the kind that the Police Department cannot constitutionally prohibit or punish. After reviewing the federal statute under which Heffernan brought his claim and existing case law, the Supreme Court concluded that the Police Department’s reason for demoting Heffernan (“overt involvement” in Spagnola’s campaign) is what counts and not whether Heffernan’s actual conduct was constitutionally protected. Specifically, if an employer demotes or discharges an employee out of a desire to prevent the employee from engaging in political activity protected by the First Amendment, the employee is entitled to challenge that action “even if, as here, the employer makes a factual mistake about the employee’s behavior.” The Supreme Court noted that the same kind and degree of constitutional harm occurs whether the employer’s belief is accurate or mistaken.
The Supreme Court remanded the case to the trial court to determine if the Police Department had a different and neutral policy prohibiting police officers from overt involvement in any political campaign, if the Police Department was following that policy when it demoted Heffernan, and whether the policy complies with constitutional standards.
The Supreme Court’s decision potentially broadens First Amendment protections for public employees to not only include the employee’s actual expression or association, but the employer’s perception of the employee’s expression or association. When considering discipline or adverse consequences for an employee as a result of the employee’s speech/association, public employers must not only be mindful of the specific factual circumstances surrounding the employee’s speech/association, but also how the employer interprets the employee’s conduct, how the employer communicates the reason for the discipline/adverse consequence, and how the employer’s actions will be received under the circumstances.