Is the Perceived Political Speech of Employees Constitutionally Protected?

On April 26, 2016, the U.S. Supreme Court issued its opinion in Heffernan v. City of Paterson, No. 14–1280, finding that a police officer who was demoted after being seen talking to a mayoral candidate’s campaign team can assert a claim that he was deprived of his constitutionally protected rights under 42 U.S.C. section 1983, even though his employer was mistaken about the fact that he had engaged in political activity. This case illustrates that when a government employer subjects an employee to an adverse employment action based on the employer’s mistaken belief that the employee engaged in constitutionally protected activity, that mistake will not save the employer from liability under Section 1983.

In 2005, the mayor of Paterson, New Jersey, was running a contested reelection campaign.  Jeffrey Heffernan was a police officer for the city and a good friend of the mayor’s opponent.  The police chief and the officer who directly supervised Heffernan were appointed to their positions by the mayor. Heffernan’s mother, who supported the opposing candidate, asked Heffernan to pick up a yard sign from one of the opponent’s campaign sites because she was too sick to do so. Police officers observed Heffernan talking with the opponent’s campaign staff while holding the sign, and word quickly spread through the department. The next day, Heffernan was demoted from detective to patrol officer due to his “overt involvement” in the opponent’s campaign.

Heffernan sued the department under Section 1983 (a post-Civil War statute that protects individuals from violations of their constitutional rights by persons acting under “color” of state law), claiming he was demoted based on the mistaken belief he had engaged in constitutionally protected conduct. The district court held Heffernan had not engaged in conduct protected by the First Amendment. The Court of Appeals for the Third Circuit affirmed, holding a Section 1983 claim can be asserted only when the adverse action was “prompted by the employee’s actual, rather than perceived, exercise of constitutional rights.”

The Supreme Court reversed, making an analogy to Waters v. Churchill (1994) 511 U.S. 661, where the Court upheld the dismissal of an employee based on the employer’s mistaken, but reasonable, belief that the employee spoke out on matters of personal concern (such speech would not be protected). The Court concluded the government’s reason for demoting Heffernan was “what counts” and held when an employer demotes an employee out of a desire to prevent the employee from engaging in political activity, the employee may claim a deprivation of rights under Section 1983, even if the employer is mistaken about the employee’s political activity.

The First Amendment prohibits governmental action that abridges an individual’s freedom of speech. The Court’s focus was on the department’s actions, taken pursuant to its policy, regardless of whether Heffernan actually engaged in protected activity. Additionally, the Court concluded an employer’s factual mistake about an employee’s conduct does not diminish the harm caused by the adverse action, which has the effect of discouraging other employees from engaging in constitutionally protected activities. Finally, the Court reasoned its holding would not impose significant extra costs on the employer; if anything, the rule would require plaintiffs to prove a more complicated and costly claim.

The Court noted there was some evidence Heffernan was demoted pursuant to a neutral departmental policy prohibiting police officers from any overt involvement in any political campaign.  The Court remanded the case for further proceedings regarding whether such a policy existed, whether the city demoted Heffernan because of such a policy, and whether the policy was constitutionally valid.


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