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U.S. Supreme Court Issues Decision On First Amendment Public Employee Case

Volume 15, Issue 7
May 10, 2016

On April 26, 2016, the United States Supreme Court issued its decision in Heffernan v. City of Paterson - a case that presented the issue of whether the First Amendment bars the government from demoting a public employee based on a supervisor's mistaken perception that the employee supports a political candidate.

Jeffrey Heffernan was a police officer in Paterson, N.J., working as a detective assigned to the office of the chief of police. The chief of police and Heffernan's immediate supervisor supported the incumbent mayor during a mayoral election. Heffernan was seen holding a campaign yard sign for the mayor's opponent (who happened to be a good friend of Heffernan's) and talking with the opponent's campaign staff. Heffernan's supervisors concluded that he was "overtly involved" in the opponent's campaign, and demoted him to a patrol officer assigned to a "walking post." Heffernan, who was not eligible to vote in the mayoral election because he did not live in the city and was not participating in the campaign in any way, had actually obtained the sign for his mother.

Generally, the First Amendment protects a public employee's political and associational activity if the employee is in a non-political, non-policy making position. Heffernan contended that his demotion violated his First Amendment rights because the employment action was taken due to his purported support of the mayor's opponent. The lower courts rejected his claim, however, based upon the argument that the First Amendment protects only a public employee's actual, rather than perceived, exercise of a constitutional right.

The U.S. Supreme Court found the employer's motive to be critical and agreed with Heffernan, holding that the First Amendment protects both the actual and the perceived exercise of constitutional rights. The Court explained that when a public employer demotes a public 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 . . . even if, as here, the employer makes a factual mistake about the employee's behavior."

Despite the Court's ruling, the case is not over yet. It has been sent back to the lower courts for a determination of whether Heffernan's employer acted pursuant to a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy is constitutional.

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