New From SCOTUS: First Amendment Protects Government Employees From Retaliation, Even if the Employer is Wrong About the Speech

SCOTUS: Government Employees are Protected from Retaliation
SCOTUS: Government Employees are Protected from Retaliation

In a 6-2 decision that broadens First Amendment protections for public employees, the U.S. Supreme Court ruled that the lower court erred when it dismissed a lawsuit brought by a New Jersey police officer who was demoted after fellow officers saw him with a campaign sign for the challenger to the incumbent police chief.

As it turned out, the plaintiff in Heffernan v. City of Patterson was not actually supporting the challenger – he was picking up the sign for his bedridden mother. The defendants were not aware of this fact. They tried to use their ignorance to their advantage, arguing that the City should not be liable for retaliation since supervisors were actually wrong about Mr. Heffernan engaging in protected speech.

Writing for the Court, Justice Breyer rejected the defendants’ argument:

“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 and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.”

Justice Breyer reasoned that a contrary rule would have a chilling effect on other employees, observing that “[t]he discharge of one tells the others that they engage in protected activity at their peril.”

In dissent, Justice Thomas, writing for himself and Justice Alito, argued that the plaintiff had conceded that he never exercised his First Amendment rights, and that “federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated.” The dissent’s position does have logic to it – in a formalistic sense. But it would have left many government employees unprotected from retaliation and created a chilling effect on protected speech – a point the majority seized on.  It would have also invited a battle about whether protected speech occurred in every retaliation case – even where the intent and the impact are not in dispute.

The Heffernan opinion strikes a practical balance that creates a workable rule for government employers and a clear framework for judges handling retaliation cases. Questions about this post, the status of employment rights law and developments under the First Amendment can be directed to the author.

DanielTaiDaniel C. Tai is an employment rights attorney practicing at Blanchard & Walker PLLC. For questions about your individual rights, consider retaining a skilled employment rights lawyer. Only your own lawyer can give you legal advice.