U.S. Supreme Court Strengthens Public-Employee Speech Protections
The U.S. Supreme Court on Tuesday gave greater protection to teachers, police officers, and other public employees from adverse job actions taken on the basis of their superiors' perceptions of the workers' First Amendment activities.
The court ruled 6-2 that a New Jersey police officer who was demoted because of his bosses' misimpression that he was backing a political rival to the incumbent mayor may challenge the demotion as a violation of his rights of free speech and association.
"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," Justice Stephen G. Breyer wrote for the majority in Heffernan v. City of Paterson, N.J. (Case No. 14-1280).
His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
As I wrote when the case was argued in January, the Heffernan case involves the kind of patronage and political concerns that pervade not only many New Jersey municipal governments, but also the state's school districts.
The case involves Jeffrey Heffernan, who was a police detective in Paterson, N.J., in 2006 when his mother asked him to get her a yard sign for her preferred candidate in the upcoming mayoral election, Lawrence Spagnola.
Heffernan went to a campaign distribution point where workers were giving out the signs. He was a friend of Spagnola's and wanted him to win, but Heffernan himself did not live in Paterson, so he stayed out of any active participation in the campaign.
While Heffernan was picking up the sign, he was observed by a Paterson police officer who served on the security detail of the incumbent mayor, Jose Torres, who was seeking re-election.
Torres and Heffernan's superiors in the police department got the impression that the officer was backing Spagnola. Heffernan was demoted from detective to patrol officer, with his supervisors not even hiding the fact that they were demoting him for campaigning, even though their action was based on the misimpression.
Heffernan sued for retaliatory demotion in violation of his First Amendment rights of free speech and association. He lost in a federal district court and in the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia. Those courts held that 3rd Circuit precedents foreclosed a First Amendment claim based on a mere perception of his speech or association, and that he had not actually spoken or associated with anyone in a way that prompted the actions against him.
Weighing Pickering and Waters
The Supreme Court on April 26 rejected the idea that a factual mistake by a public employer could not be the basis for an employee's First Amendment suit, even if the employee did not engage in protected political activity.
Justice Breyer said some of the high court's key decisions on public-employee speech did not much help resolve the case because they were not based on factual misperceptions by employers.
One such case, he said, was Pickering v. Board of Education of Township High School District No. 205, the 1968 decision involving a high school teacher's letter to a newspaper complaining about the school budget. In that case, the court held that a public employee's speech is protected if it is on a matter of public concern and if the employee's interest outweighs the public employer's interest in an efficient workplace.
A more relevant precedent, Breyer said, was Waters v. Churchill, a splintered 1994 decision in which the court upheld a public hospital's dismissal of a nurse for making comments to another nurse about the hospital's staffing policies.
Breyer said that in Waters, "the employer wrongly, though reasonably, believed that the employee had spoken only on personal matters not of public concern, and the employer dismissed the employee for having engaged in that unprotected speech."
Although the court found in that case that the employee's speech actually was on a matter of public concern, it was the employer's permissible motive that mattered.
"In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here [in the Heffernan case], the employer mistakenly thought that the employee had engaged in protected speech," Breyer said.
"We conclude that, as in Waters, the government's reason for demoting Heffernan is what counts here," Breyer said. "The government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. ... And Heffernan was directly harmed, namely, demoted, through application of that policy."
The majority sent Heffernan's case back to lower courts to determine whether his employer may have dismissed him under a different motivation, for violating a neutral policy prohibiting police officers from overt involvement in any political campaign.
Justice Thomas, in a dissent joined by Justice Alito, said the city of Paterson's demotion of Heffernan may have been "misguided or wrong," but Heffernan's constitutional claim failed at the outset because he did not engage in speech on a matter of public concern.
"If the employee has not spoken on a matter of public concern, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech," Thomas said.