Last week, the U.S. Supreme Court held that a public employer’s motive to suppress what it believes to be protected speech or associative conduct may be sufficient to support a First Amendment claim—even if the public employer is mistaken in its assumption that the employee’s conduct would constitute protected activity under the First Amendment of the Constitution.
In the case, Heffernan v. City of Paterson, N.J. (U.S. 2016), a public employer demoted a police officer for “overt involvement” in the campaign of the incumbent mayor’s rival in an election after he was observed with a campaign sign and speaking with campaign officials. As it happened, the public employer was wrong: the police officer was not involved in the campaign and was simply honoring a request from his bedridden mother to pick up a sign for her yard.
Lower courts held for the public employer, explaining that the employee could not assert First Amendment protection because his conduct—obtaining a sign for his mother—did not constitute protected activity under the First Amendment. The Supreme Court disagreed, however, and concluded that the primary focus in First Amendment claims should be on the public employer’s understanding of the facts, even if flawed, and its motive for taking an adverse action.
Speaking for the Court, Justice Breyer explained: “When an employer demotes an employee out of a desire to prevent the employee from engaging in protected activity that the First Amendment protects, the employee is entitled to challenge that action . . . even if, as here, the employer makes a factual mistake about the employee’s behavior.”