Case Summary and Outcome

The U.S. Supreme Court held that the Constitution prohibits the police department, a government employer, from firing or demoting an employee because the employee supports a particular political candidate.

Facts

Jeffery Heffernan, a police officer in Paterson, New Jersey, had a mother who was bedridden and asked him to pick up a sign from a mayoral candidate’s campaign office that she wanted to put in her yard to replace a stolen one.  The candidate was the opposition to the incumbent mayor, who had appointed the current police chief, Heffernan’s supervisor. Other members of the police force saw him holding the sign, talking to campaign workers, and this information spread throughout the police force by the end of that working day. Based on this information, Heffernan’s employers made the erroneous assumption that he supported the opposition candidate.

The next day, as a way of punishing Heffernan for his “overt involvement” in the opposition candidate’s campaign, he was demoted from patrol officer to a “walking post”. Heffernan filed a Federal Court lawsuit alleging that he was demoted due to engaging in conduct that constituted protected speech and that, therefore, he had been deprived of a right secured by the Constitution. The District Court decided against Heffernan, holding that he had not engaged in “First Amendment Conduct” and therefore was not deprived of a constitutionally protected right. The Court of Appeals for the Third Circuit affirmed this decision on the grounds that a free speech retaliation claim is only actionable where the adverse action was due to the employee’s actual rather than perceived exercise of constitutional rights.

The question before the Supreme Court therefore was whether the First Amendment prohibited the government from demoting a public employee based on the perception that the employee supported a political candidate. In other words, whether liability for firing or demoting an employee hinged on the employer’s motive, rather than on the actions of the employee.

Decision Overview

Justice Breyer wrote the opinion for the majority, and Thomas and Alito dissented.

The Court held that with a few exceptions, which it is assumed do not apply here, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. The Court cited the Waters case, in which it was held that an employer was not liable for firing an employee even if the employer had wrongly believed that the employee engaged in a kind of gossip that was not protected by the First Amendment. The employer was not liable because it was not motivated by any unconstitutional purpose when it fired the employee.

Justice Breyer found that the result in the Waters case ought to apply in the present case: “If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.” Thus, it was held that the government’s reason for demoting Heffernan is what counts. Justice Breyer held that when an employer demotes an employee in order to prevent the employee from engaging in political activity protected by the First Amendment, then the employee is entitled to challenge that unlawful action under the First Amendment even if the employer makes a factual mistake about the employee’s behavior.

Additionally, Justice Breyer cautioned that, if Heffernan’s employer were to escape liability because of a factual mistake, it would have a chilling effect on other employees who wished to engage in constitutionally protected activity: “The discharge of one tells the others that they engage in protected activity at their peril.” It is held that and employer’s factual mistake does not diminish the risk of causing this harmful effect.

The majority acknowledged that it had been assumed that the policy that Heffernan’s employers implemented in demoting and dismissing Heffernan violated the Constitution, but there was evidence that he was dismissed pursuant to a different and neutral policy which prohibited police officers from overt involvement in any political campaign. It was held that the existence of this policy and its compliance with the Constitution were matters for lower courts to decide. Thus, without expressing views on this matter, the Court reversed the judgment of the Third Circuit and remanded the case for further proceedings consistent with its present opinion.

Justices Clarence Thomas and Samuel Alito dissented on the grounds that plaintiffs whose constitutional rights have not actually been violated do not have a cause of action under federal law. Justice Thomas would have found that the law does not provide “a remedy against public officials who attempt but fail to violate someone’s constitutional rights”. Furthermore, “[d]emoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.” He would have held that, in order for Heffernand to sustain a retaliation claim against his employer, he would have to prove that his protected activity was a cause-in-fact of the retaliation. According to Thomas, at most, Heffernan could claim that the City attempted to interfere with his First Amendment rights, but could not succeed on the theory that the City actually infringed his rights to speak freely or to assemble. The dissent disagreed with the majority’s interpretation of the Waters holding. It would have found that, unlike the employee in Waters, Heffernan admitted that he was not engaged in constitutionally protected activity and therefore, unlike in Waters, he could not allege that the employer interfered with protected conduct. In response to Breyer’s opinion, Justice Thomas wrote that  “what is sauce for the goose is not sauce for the gander when the goose speaks and the gander does not.”