Supreme Court Reinstates Officer’s Free Speech Lawsuit

In 2005, Jeffrey Heffernan was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed both Chief Wittig and a subordinate who directly supervised Heffernan to their current positions. Heffernan was a good friend of Spagnola’s.

During the campaign, Heffernan’s mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola’s campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force.

The next day, Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a “walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spagnola’s campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan’s supervisors had made a factual mistake.

Heffernan subsequently filed a lawsuit in federal court contending that Chief Wittig and other city officials had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. When his lawsuit was dismissed, Heffernan appealed, and the case found its way to the United States Supreme Court.

The Court started with the observation that, “with a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. The basic constitutional requirement reflects the First Amendment’s hostility to government action that prescribes what shall be orthodox in politics.”

The Court continued with an assumption and a question: “We assume the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities. Does Heffernan’s constitutional case consequently fail?”

The Court concluded that “the government’s reason for demoting Heffernan is what counts here. 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 under the First Amendment, even if, as here, the employer makes a factual mistake about the employee’s behavior.

“We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the ‘right of the people to be secure in their persons, houses, papers, and effects…’ the First Amendment begins by focusing upon the activity of the Government. It says that ‘Congress shall make no law…abridging the freedom of speech.’ The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a ‘law’ of ‘Congress,’ namely, the police department’s reason for taking action, ‘abridge[s] the freedom of speech’ of employees aware of the policy. And Heffernan was directly harmed, namely demoted, through application of that policy.

“We also consider relevant the constitutional implications of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees – both the employee discharged (or demoted) and his or her colleagues – from engaging in protected activities. The discharge of one tells the others that they engage in protected activity at their peril. Hence, we do not require plaintiffs in political affiliation cases to prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. The employer’s factual mistake does not diminish the risk of causing precisely that same harm. Neither, for that matter, is that harm diminished where an employer announces a policy of demoting those who, say, help a particular candidate in the mayoral race, and all employees (including Heffernan), fearful of demotion, refrain from providing any such help.”

Though Heffernan convinced the Court to reinstate his lawsuit, his case still has a long way to go. The Court remanded the case to the lower courts for considerations of other defenses the City might raise, and for a trial (if necessary).

In a dissenting opinion, Justice Clarence Thomas argued that because Heffernan was not actually engaged in political activity, his constitutional rights were not violated even if the City’s motivation in discharging him was to retaliate against him based on its mistaken belief that he was engaged in political activity.

Heffernan v. City of Paterson, New Jersey, 2016 WL 1627953 (U.S. 2016).