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Supreme Court Decides “Perceived” First Amendment Case

On April 26, 2016, the United States Supreme Court issued a decision in a case involving a question of whether a public employee can sue his employer where the employer takes an adverse employment action against the employee based on its mistaken belief that the employee had exercised his free-speech rights.  In a 6-2 decision, Heffernan v. City of Paterson, the Court decided that when an employer acts on its perception that its employee had engaged in First Amendment activity, the employee may sue the employer.

The basic facts of the Heffernan case are that the plaintiff was a police officer in Paterson, New Jersey.  The plaintiff worked directly for an individual who was appointed by the mayor.  The mayor was running for re-election against a newcomer.  During the election, the plaintiff picked up the challenger’s campaign yard sign at his mother’s request.  She was bedridden and could not pick the sign up herself.  In other words, the plaintiff was not personally overtly supporting the challenger, but simply doing a favor for his mother.

Many police officers saw the plaintiff pick up the sign and talk to campaign workers and word spread quickly around the department about his actions.  The very next day, the plaintiff was demoted and assigned to a “walking post” as punishment for the department’s mistaken belief that the plaintiff was participating in the challenger’s campaign.  The plaintiff sued for First Amendment retaliation.

Typically, in First Amendment cases, plaintiffs must show that they engaged in “protected activity” to bring a successful claim.  Protected activity comes in many forms, but it is likely that if the plaintiff here had personally supported the challenger’s campaign, that would have constituted protected activity.  The issue in this case was that the plaintiff did not actually openly support the challenger.  In other words, the plaintiff did not engage in protected activity.  The defendants mistakenly thought he did.  So, the Supreme Court had to decide whether the defendants’ mistaken belief is actionable.

After reviewing relevant statutes and case law, the Supreme Court determined that the employer’s state of mind was the key determination to be made.  As Justice Breyer wrote for the Court, “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 . . . even if, as here, the employer makes a factual mistake about the employee’s behavior.”

The decision is important for First Amendment jurisprudence, but its implications in other areas of employment law are likely limited.  The Court reasoned its decision, in part, on the language of the First Amendment which places a prohibition on the government from “abridging the freedom of speech.” Other employment statutes such as Title VII, the ADA, and the ADEA, statutorily require the employee to engage in defined “protected activity” before the anti-retaliation provisions are triggered.

If you have a question about the Heffernan case, First Amendment retaliation, or any other area of employment law, contact the experienced employment lawyers at Famighetti & Weinick, PLLC at 631-352-0050 or visit our website at

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