Perceived Exercise of First Amendment Rights May Be Protected

By Allen Smith Jan 29, 2016

Does the First Amendment protect an employee demoted over a misperception about his political leanings?

That was the question before the U.S. Supreme Court last week in a case in which a Paterson, N.J., police detective, Jeffrey Heffernan, claimed he was demoted after his bosses assumed he was supporting a candidate for mayor whom the police chief opposed. Heffernan was seen carrying a yard sign for the candidate, but he argues he was picking it up for his mother and did not support the candidate himself.

“Public employees have a right not to be demoted on patronage grounds,” argued Mark Frost, an attorney with Mark B. Frost & Associates in Philadelphia, before the high court on Jan. 19. “It does not matter if you are affiliated with a specific party or that you are nonaffiliated, [or] if you are mistakenly perceived by your employer or supervisor that you’re engaged in political association.”

The Court agreed during arguments, and has long held that public officials cannot retaliate against government employees who engage in activities protected by the First Amendment. The issue is whether a misperception that someone is engaged in those activities is also protected.

“If the Supreme Court rules in Heffernan’s favor, it will add another level of constitutional protection to the political expression of public employees,” Katherine Garbarino, an attorney with Fisher & Phillips in Louisville, Ky., told SHRM Online.

Constitutional Right?

The exchange that follows may shed light into how the Court may rule:

“There’s no constitutional right not to be fired for the wrong reason, and that’s what happened here,” said Justice Antonin Scalia.

“There’s a constitutional right, Justice Scalia, to be able to be free from patronage decisions and to be discharged or demoted on patronage grounds,” Frost responded.

“Where do we say that? We never said that,” Scalia answered. “Your client was neither speaking nor associating. So how could he possibly have a cause of action under the First Amendment?”

“He doesn’t need to speak, and he doesn’t need to take a position,” Frost said.

“Maybe this shouldn’t be a constitutional violation if there are adequate remedies” under statutes, Chief Justice John Roberts Jr. said.

“There were no other remedies,” Frost said.

The Court then discussed whether a New Jersey law protected Heffernan, and Frost maintained that even if it did, he still could sue under the First Amendment. “The employer perceived Mr. Heffernan as engaging in protected activity. They want to stifle and squash his rights of association or nonassociation. Their motive was to suppress that. And clearly, that has a chilling effect on other employees,” he said.

City’s Argument

A mere misperception is not speech or association protected by the First Amendment, the city of Paterson argued, and the 3rd U.S. Circuit Court of Appeals had previously decided before the Supreme Court granted review.

Thomas Goldstein, an attorney with Goldstein & Russell in Bethesda, Md., who is representing Paterson, said that the right Heffernan is pursuing “has never been recognized in any other political association case whatsoever.”

“We cannot find any First Amendment case that says, ‘You know what? You don’t have to engage in constitutionally protected activity so long as the government thinks you did,’ ” Goldstein remarked. “And it’s really a problem if that’s the rule because it is the threshold thing that stops plaintiffs with meritless cases from getting out of the box.”

However, Justice Elena Kagan said it would be a “strange doctrine” if the government can punish someone because he or she doesn’t share the government’s views but instead is merely apathetic.

Case’s Significance

The case in some regards will have limited reach.

“It is important to note that employees of private employers do not have First Amendment protection from termination, so the outcome of this specific case would likely not impact private workplaces,” said Tamara Devitt, an attorney with Haynes and Boone in Orange County and Silicon Valley, Calif., in an interview.

However, Dorman Walker, an attorney with Balch & Bingham in Montgomery, Ala., said this case raises the significant question of whether a ruling for the city would likely chill legitimate, nondisruptive employee speech if workers become fearful of losing their jobs based on their perceived political leanings.

This case is Heffernan v. City of Paterson, No. 14-1280 (2016).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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