Heffernan v. City of Paterson, et al., 578 U.S. ______ (April 26, 2016).

Retaliation, Motive, and the First Amendment Rights of Public Employees

Generally, a government employee cannot be fired, disciplined, or demoted for exercising their right to free speech in his or her civilian capacity on an “issue of public concern.” But what happens when the employee merely looks like he or she is engaging in such speech, and is then demoted based on the employer’s mistaken belief? Last month, in Heffernan v. City of Paterson, the Supreme Court answered that question and held that an employee may sue his or her government employer for retaliation based on perceived political speech.

In Heffernan, a police officer went to pick up a campaign sign for his bedridden mother at the headquarters of the incumbent mayor’s opponent. Other officers saw him holding the sign and conversing with some of the campaign staff. Rumors quickly swirled, and the following day, Heffernan’s supervisors demoted him from detective to patrol officer. Heffernan sued, alleging that his supervisor’s mistaken belief that he was involved in the opponent’s campaign violated his First Amendment rights even though the conduct for which he was demoted was not an actual expression of political speech. The City argued that because Heffernan was picking up the sign for his mother, he was not actually engaged in protected political speech, and his demotion could not be considered a violation of his rights. The Supreme Court focused on the unconstitutional motive behind the demotion, rather than on whether the employee was actually engaged in protected speech. The Court stated that the motive for the adverse employment action controlled, and therefore the City’s demotion of Heffernan violated his First Amendment rights.