On April 26, 2016, the U.S. Supreme Court decided that a public agency can incur liability for a First Amendment violation if it demotes or disciplines one of its employee based on the agency’s mistaken belief that the employee has exercised a right of free expression. The Court’s decision in Heffernan v. City of Paterson rejects theories advanced by the City in that case that the dimensions of constitutional free speech law should let ill-meaning public employers “off the hook” in mistaken perception cases, when an employee never technically exercised any right to speak – but the employer thought he or she had done so. In rejecting this narrow approach, the Supreme Court has signaled that it will take a practical rather than technical view of the First Amendment in the public employment context in order to protect free speech rights for public employees.
Under the First Amendment, a public employer generally cannot take an adverse action against an employee because he or she supports a political cause or political candidate. (There are exceptions, including an exception for certain types of high-level or politically chosen employees, and for appropriate even-handed prohibitions on partisan activity). This is because the employee’s support constitutes the exercise of an expressive right protected by the First Amendment.
Jeffrey Heffernan’s case presented the Supreme Court with a unique twist. His employer allegedly retaliated against him based on the employer’s perception that he had exercised such a right to speak, when in fact Heffernan had not actually done so. Heffernan, a police officer for Paterson, New Jersey, was asked by his bedridden mother to pick up a campaign sign for her to put on her lawn. The campaign sign supported an individual running for City Council, Lawrence Spagnola, who was evidently opposed to the incumbent Mayor and Police Chief. Heffernan went to a distribution center, picked up a sign from campaign workers, and talked briefly with Spagnola’s campaign manager. Someone from the City observed him, and reported the activity to the Police Chief. The next day, the Chief demoted Heffernan and downgraded his assignments, stating explicitly that the demotion was because Heffernan supported Spagnola. Heffernan responded he did not actually support Spagnola in any way.
In the Court of Appeals, this response proved the undoing of Heffernan’s constitutional claim: the Court found that, because he had not actually exercised any constitutional right to free speech or association, he could not assert a constitutional retaliation claim.
The U.S. Supreme Court agreed to hear the case. When oral argument before the Supreme Court took place January 19, 2016, Justice Scalia appeared vigorously to defend the City’s view. Observers thought the Justices appeared split on the legal issue raised. Today’s opinion, however, was supported by a majority of six justices, with only Justices Thomas (who wrote a separate opinion) and Alito dissenting.
The majority opinion by Justice Breyer held that Heffernan could state a First Amendment retaliation claim against the City, and that the fact Heffernan had not actually supported Spagnola was beside the point.
The Supreme Court began by describing that, in general, the First Amendment prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity. The Court as a side note referenced that there are some exceptions, including that a “neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity” and that in some circumstances a “political affiliation requirement” is permissible where affiliation is “an appropriate requirement for effective performance of the public office involved.”
The Court assumed that such exceptions did not apply in this case and that, instead, “the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish.” (Emphasis added.) The Court observed that existing law did not supply a direct answer to whether an employee had a claim in this situation, in particular a claim of retaliation for exercise of a right the employee did not in reality exercise.
The Court identified one of its prior cases, however, Waters v. Churchill from 1994, which served as precedent for making employer motives the decisive factor in deciding liability for First Amendment retaliation. In that case, the employer took action on the mistaken belief the employee had engaged in personal gossip when in fact the employee had engaged in protected speech on a matter of public concern. The Supreme Court had found that the employer lacked a motive to retaliate for protected speech in this circumstance: because of the mistake, there was no constitutional violation. (Waters concerned a nurse’s statements to co-workers at a public hospital.) In Heffernan, the Court reasoned that in cases like the one before it, motive should be the deciding factor as well, and not the actual speech (or lack of it) at issue.
The Court also pointed out that a rule focusing on employer motives well-served the purposes of the First Amendment:
We also consider relevant the constitutional implications of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities. The discharge of one tells the others that they engage in protected activity at their peril. . . . . The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.
Based on this reasoning, Justice Breyer’s majority opinion holds as follows:
We conclude that, as in Waters, the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.
As a practical matter, Heffernan is a reminder to employers to consider carefully the legal ramifications of any actions based on or that affect political expression by employees.