Supreme Court Rules Political Speech Is Protected Even If You Didn't Actually Speak

What matters is the motive of those who sought to punish you.
A police officer was essentially demoted for doing his mom a favor.
A police officer was essentially demoted for doing his mom a favor.
Matt McClain/The Washington Post via Getty Images

The U.S. Supreme Court on Tuesday sided with a former police officer who was demoted by his supervisors because they thought, mistakenly, that he had engaged in political activity while off duty.

The 6-2 decision in Heffernan v. City of Paterson, a dispute over the reach of the First Amendment for public employees, might seem like a no-brainer. But the justices faced the rather tricky question of whether the First Amendment shields employees who aren't engaging in protected political conduct but are merely "perceived" by their superiors to be doing so.

Does the Constitution cover someone who wasn't actually exercising a constitutional right?

Justice Stephen Breyer, writing for the majority, said that it does. But to get there, he and his colleagues had to first acknowledge that neither the court's prior decisions nor the text of the federal statute that allows citizens to sue for vindication of their civil rights is very clear on the question.

Jeffrey Heffernan, the man at the center of the case, hoped to convince the Supreme Court that it's the motive of the employer who demoted him -- not whether his activities were actually political -- that matters.

In 2005, Heffernan, who was good friends with a candidate looking to unseat José "Joey" Torres, the mayor of Paterson, New Jersey, was spotted by a member of the mayor's security detail while picking up a lawn sign at the candidate's campaign operation. The sign wasn't for Heffernan but for his bedridden mother, who had asked him to do her a favor.

A day later, Paterson's chief of police, who had been appointed to his post by Torres, demoted Heffernan to foot patrol for his apparent "overt involvement" in a political campaign. Heffernan later sued.

Against this backdrop, the Supreme Court concluded that Heffernan's First Amendment right didn't rest on whether he was, in fact, engaged in constitutionally protected political activity, but whether his superiors were motivated to discourage such activity when they took action against him.

"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," Breyer wrote.

Curiously, the court decided the constitutional question while cautioning there was a big hole in the case: whether Heffernan might have been punished not for apparently supporting the mayor’s rival but under a "neutral policy prohibiting police officers from overt involvement in any political campaign." Given the lack of clarity, the Supreme Court sent the case back to the lower court for further proceedings.

Justice Clarence Thomas, continuing with a recent dissenting streak, disagreed with the majority. He would have ruled that the "factual impossibility" of suing over the violation of a right you never publicly exercised means the officer should have lost this case.

"If the facts are as Heffernan has alleged, the City's demotion of him may be misguided or wrong. But, because Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under" the federal statute used here, Thomas wrote in a dissent joined by Justice Samuel Alito.

The late Justice Antonin Scalia, who heard oral arguments in the case in January, might have agreed with Thomas.

Heffernan "was associating with his mother, I suppose, in picking up the sign for her," Scalia said at the hearing. But the justice also noted, "He was not expressing any First Amendment view whatever. I mean, he was fired for the wrong reason, but there's no constitutional right not to be fired for the wrong reason."

With Tuesday's decision, it is clear that view didn't win the day.