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Supreme Court Expands First Amendment Protections for Public Employees

Posted by Eric Kingsley | May 06, 2016 | 0 Comments


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On April 26, 2016, the Supreme Court of the United States (SCOTUS) ruled that when a public employer demotes an employee out of a desire to prevent that employee from engaging in First Amendment protected activity, the employee can challenge the action even if the employer is mistaken about the employee's behavior. In Heffernan v. City of Paterson, SCOTUS strengthened free speech rights for public employees by holding a public employee may bring a suit premised on his engagement in protected political activities, even when the employee did not engage in those activities, and the employer was mistaken in its belief that the employee had.


The case began when Jeffrey Heffernan, a police officer for the City of Paterson, New Jersey, was demoted from detective to patrol officer for what he claimed was mistaken political speech. In 2006, a friend of Heffernan's ran for Mayor against the sitting incumbent. An aide to the incumbent Mayor saw Heffernan carrying a lawn sign for his friend, which led the Mayor to believe that Heffernan was supporting a rival. Soon after, Heffernan was demoted and he later filed a First Amendment claim alleging that the action was taken in retaliation for perceived political speech.

Heffernan claimed he wasn't carrying the lawn sign for himself but for his ailing mother. While Heffernan wanted his friend to win the election, he did not work on the campaign. In fact, Heffernan could not even vote for his friend because he did not reside in Paterson.

Heffernan initially won over $100,000 at a jury trial but that decision was later vacated on appeal. The case was then dismissed and the 3rd Circuit Court of Appeals affirmed the dismissal in early 2015. The appeals court ruled that because Heffernan was not actually expressing his support for his friend by carrying the lawn sign, he had not engaged in protected activity under the First Amendment. Therefore, the city's action, which was based on a misperception of Heffernan's political preference, could not have violated the First Amendment's guarantees of free speech and association. An appeal to the Supreme Court followed.

SCOTUS Decision

The Supreme Court disagreed with the 3rd Circuit Court of Appeals, stating that “[w]hen an employer demotes an employee out of a  desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment … even if, as here, the employer's actions are based on a factual mistake about the employee's behavior.”  The Court assumed that the supervisor thought the police offer was engaging in constitutionally protected conduct and stated that the government's motive mattered where it demoted the police officer on the “mistaken belief that he had engaged in protected speech.”  Ultimately, the Court directed lower courts to decide whether the city acted pursuant to a neutral policy prohibiting police officers from overt involvement in a political campaign and whether such a policy complies with constitutional standards.


While this decision does not impact private sector businesses. the Heffernan decision made it clear that public employers will not be shielded from liability if they take an adverse employment action based upon an improper motive, even if it turns out that motive was based upon a factual error.

If you have questions about First Amendment protections or wrongful termination, don't hesitate to contact leading California employment lawyers from Kingsley & Kingsley to take advantage of a free initial consultation. To discuss your situation call us toll-free at (888) 500-8469 or click here to contact us regarding your case.

About the Author

Eric Kingsley

In practice since 1996, attorney and firm co-founder Eric B. Kingsley has litigated complex cases and authored numerous appellate briefs in both state and federal court on behalf of the California law firm of Kingsley & Kingsley, including over 150 class actions. Mr. Kingsley concentrates his pra...


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