By Joy P. Waltemath, J.D. and Pamela Wolf, J.D. The Supreme Court heard arguments January 19 on the First Amendment retaliation claim of a police officer who was demoted the day after he was seen picking up a large campaign sign for the former police chief, who was challenging the incumbent mayor in a coming election, on behalf of his bedridden mother. Affirming summary judgment for the city employer, the Third Circuit had found the officer could not show that he actually exercised his First Amendment rights to free speech and free association because he repeatedly disavowed any intent to convey a message and denied working on the former police chief’s mayoral campaign or being “politically involved” with it. Perceived support theory. The question presented in the petition in Heffernan v. City of Paterson, Dkt. No. 14-1280, which the Supreme Court agreed to review October 1, is whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. Central to the case is the issue of whether an employee must actually engage in a protected activity in order to maintain a First Amendment retaliation claim, or whether the employer’s perception and motivation in carrying out an adverse action are enough. Protection extends to mistaken perceptions. Attorney Mark Frost, arguing on behalf of the employee, told the Justices that public employees enjoy the right not to be demoted on grounds of patronage. “It does not matter if you are affiliated with a specific party or that you are nonaffiliated. It does not matter if you are mistakenly perceived by your employer or supervisor that you're engaged in political association to be protected by the First Amendment.” According to Frost, “it is not necessary to have any affirmative acts—that by virtue of being a public employee, [an employee] has the right not to engage in political association.” Frost said that the employee was demoted because the public employer perceived that he was exercising his First Amendment right. “[T]he fact that he was not actually engaged in any political activity should make no difference with respect to the motivation [for the] outcome of what took place with Mr. Heffernan. The issue was clearly that it was ill will. It was because it was against the administration, and they took that action to suppress that belief, and it chills others.” Justice Department Attorney Ginger D. Anders, on behalf of the federal government as amicus curiae, urged that the employee “has a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs.” Was a constitutional right asserted? Thomas Goldstein, arguing for the City of Paterson, New Jersey, suggested that the Court’s questioning thus far pointed to the fact that a plaintiff in a case such as this must assert a constitutional right. According to the city’s attorney, the real question in the case is whether there is “actually a constitutional right here, one that we might define in other terms, including the one that Justice Kennedy [earlier in the argument] identified as the right not to have political views inquired in[to].” And that right has never been recognized in any other political association case, Goldstein said. Is it a matter of perspective? Justice Ginsburg made an interesting analogy to test Goldstein’s position: “Let’s take a Title VII case, and the employer fires a woman because he thinks she’s pregnant. She brings a sex discrimination case and alleges, well, I wasn’t pregnant. I just was gaining weight. So she has no sex discrimination claim, then, because she wasn’t pregnant?” Giving the city a hand, Justice Scalia noted that those statutes focus on the employer; that is what the employee in this case suggested the Court should do. But Scalia made the distinction between the Title VII case and this case. “The First Amendment does not focus on the government; it focuses on the citizen. The citizen has a right to free speech and free association.” There is much at stake in this case for public employees, who are so often affected by the political winds.
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