Mistake and the First Amendment.

Heffernan v. City of Paterson, No. 14-1280, 2016.SCT.0002972 (April 26, 2016) (VersusLaw), decided earlier this year, presents an unusual situation. Heffernan, a police officer, was demoted by his superiors for engaging in political speech in contravention of the department’s rules. Heffernan had agreed to pick up a campaign sign for his mother from the candidate opposing the current mayor, Spagnola. While at the Spagnola headquarters, Heffernan was seen by a member of the police force, and word reached Heffernan’s superiors who demoted him from detective to patrol officer the next day. Heffernan explained that he had not been engaged in political speech but was merely running an errand for his infirm mother. Heffernan brought a § 1983 action against the department contending that he was demoted for conduct protected by the First Amendment.

The court began their analysis by stating they “assume that the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish.” Id. at *2. The court framed the issue as whether supervisors could be held to have acted based on an improper motive when the supervisor was mistaken about the facts. The Court concluded that what matters is the government’s reason for the demotion, even if there is a mistake about the employee’s behavior. The Court explained that, in addition to punishing the employee for what is Constitutionally-protected activity, the demotion sends a message to other employees that they engage in political speech at their peril. The harm suffered by the employee is the same regardless of whether the employer acted on a mistaken belief or reality.

Disagreeing with the Majority, Justice Thomas pointed to several things which he contended established Heffernan did not deserve First Amendment protection from his demotion. He noted that foremost, Heffernan, himself, denied that his act of picking up the sign was political speech. The fact that the department may have an unconstitutional policy did not give Heffernan a claim since his injury did not stem from a violation of his Constitutional right.

Despite some strained arguments and contorted reasoning, it would appear the majority was concerned about the “chilling effect” the Department’s actions would have on the remainder of the force, even though the opinion never uses the words. While Thomas described Heffernan’s demotion as “callous, but not unconstitutional,” the majority saw the demotion as a wrong without redress if Heffernan was not permitted to argue a § 1983 violation.


For other information about restrictions on the exercise of free speech and employment, we invite you to review the links below to Legal Issues from Litigation Pathfinder.