May 18, 2016

The U.S. Supreme Court recently answered the question – does the Constitution cover someone who wasn’t actually exercising a constitutional right?  The answer is “yes.”  In Heffernan v. City of Paterson, the U.S. Supreme Court ruled on the rather tricky question of whether the First Amendment shields employees who are not engaging in protected political conduct but are merely “perceived” by their superiors to be doing so.

The Court held that when a public 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 and Section 1983.

Although the case focuses on the rights of public employees; it includes insights that are helpful to all employers.

As background, in 2006, Police Officer Heffernan was demoted from his post as detective after one of his superiors learned that the 20-year veteran had obtained a political lawn sign supporting a mayoral candidate looking to unseat José “Joey” Torres, Paterson’s mayor.  Heffernan had not picked up the yard sign for himself, but for his bedridden mother, whose old sign was stolen.  Without knowing this, a member of the mayor’s security detail happened to spot Heffernan with the sign and snitched on him to the police chief. (The police chief had been appointment to his post by Mayor Torres). A day later, without an explanation, Heffernan was demoted to foot patrol.

That demotion formed the basis for a First Amendment lawsuit against the mayor and Heffernan’s supervisors in federal court, in which the officer contended that his rights to free speech and association were violated.  A jury agreed and awarded him $75,000, but the city of Paterson appealed — leading to long court battle that eventually wound its way to the U.S. Supreme Court.

By a 6–2 margin, the U.S. Supreme Court held that a public employee’s constitutional rights are violated when the employee is disciplined for engaging in speech protected under the First Amendment even when the employer mistakenly believes the employee had done so.  In other words, what matters is the motive of those who sought to punish the employee.

Justice Stephen Breyer wrote for the majority that the department’s belief was all that mattered, since the Court’s precedent in this area holds it is unconstitutional for a government agency to discipline an employee (who does not work under a contract that explicitly permits such discipline) for engaging in partisan political activity, as long as that activity is not disruptive to the agency’s operations.  Even if Heffernan was not engaging in protected speech, he wrote, the discipline against him sent a message to others not to exercise their rights.  Justice Clarence Thomas wrote a dissenting opinion where he agreed that Heffernan had been harmed, but his constitutional rights had not been violated.


  • Appearances can be deceiving
  • Investigate the report of an employee’s conduct before taking any action


Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.