Supreme Court Broadens First Amendment Protection

May 2, 2016 | General

The Supreme Court added another layer of constitutional protection to public employees’ political expression on April 26, ruling that the First Amendment protects a worker who was demoted over a misperception about his political leanings.

The decision is a good reminder, especially in an election year, that public employers should not take action against employees for their perceived or actual support of a candidate, said Tamara Devitt, an attorney with Haynes and Boone in Orange County, Calif.

Katherine Garbarino, an attorney with Fisher & Phillips in Louisville, Ky., agreed, saying it was a “cautionary case for public employers,” particularly with a “heated presidential election coming up.”

Free Speech

Jeffrey Heffernan claimed he was demoted by the city of Paterson, N.J., from detective to patrol officer, after his bosses assumed he was supporting a candidate for mayor whom the police chief opposed. Heffernan was seen carrying a yard sign for the candidate, but he was picking it up for his bedridden mother and did not support the candidate himself.

Heffernan sued, claiming that his First Amendment right to free speech had been violated.

The lower courts ruled that Heffernan’s claim was actionable only if his employer’s decision had been prompted by actual, rather than perceived, exercise of his free-speech rights. So because Heffernan had not actually supported the candidate, the courts ruled that his right to free speech had not been violated.

In a 6-2 decision, the Supreme Court reversed, ruling that the employer’s motive was what was relevant.

“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,” the court said in an opinion written by Justice Stephen Breyer. Section 1983 is the statute for redressing constitutional and federal statutory violations, according to the Federal Judicial Center, a research and education agency.

When considering the right to free speech granted by the First Amendment, the court determined that the primary focus should be on the supervisor’s motive and the facts as the employer reasonably understood them, rather than on the employee’s actual activity.

Moreover, the constitutional harm—discouraging employees from engaging in protected speech—is the same whether the employer’s action is based upon a factual mistake or if the employer was correct in its assumption, the court ruled.

However, the court noted that there was some evidence that the city may have demoted Heffernan because of a neutral policy prohibiting police officers from overt involvement in any political campaign. The court left it to the lower courts to decide whether that policy existed and if so, if it was followed, and also whether such a policy is constitutional.


Justice Clarence Thomas, in a dissent joined by Justice Samuel Alito Jr., wrote that “federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated.” He added, “Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.”

However, Devitt said she did not find the dissent to be persuasive, calling it technical, and noting that in California at least, “technical arguments almost never work.”

She also said the majority’s decision was consistent with retaliation claims, which may be brought even when protected activity is merely perceived rather than actual, as long as the perception is in good faith.

This decision is Heffernan v. City of Paterson, N.J., No. 14-1280 (2016).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.