Mark Powell May 15, 2016, 12:02am

A Supreme Court ruling in favor of a former Paterson, New Jersey, police officer who claimed he was unjustly demoted after his boss mistakenly believed he was involved in a political campaign could have a large impact on public employers nationwide, says a Chicago lawyer.

The Court’s 6-2 decision found Jeffrey Heffernan could file a First Amendment violation claim against the city for which he once worked.

The ruling is controversial in that Heffernan never actually voiced his preferred candidate in the Paterson mayoral race - instead, he was picking up a campaign sign for his mother. The Court effectively ruled that the former police officer could claim his free speech rights were violated by association. That is, his rights were violated when he was demoted because he was presumed to be supporting a political cause, even though he was not directly involved in advocating for a candidate.

“(Previously) you could retaliate against people with the mistaken belief they had engaged in activity that was prohibited under the First Amendment,” said Steven Puiszis, a partner at Hinshaw and Culbertson LLP in Chicago. “Now…we will look at what the defendant believed the plaintiff was doing and if that motivated the conduct, then we’re going to analyze it…as if it was First Amendment-protected.”

Lower courts had ruled against Heffernan, saying the government does not violate first amendment rights because he was not technically using free speech, but simply running an errand.

Justices Clarence Thomas and Samuel Alito agreed with the lower courts' decisions.  However, Justice Stephen Breyer, writing for the majority, said the lower courts answered the question incorrectly.

“The question here is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion deprive him of a right…held by the Constitution? We held that it did,” Breyer said, delivering the opinion of the Court.

This case has been a long fight for Heffernan. The alleged incident took place in 2006, when Heffernan was seen holding a campaign sign for mayoral candidate Lawrence Spagnola, who was in the midst of a heated race against incumbent Jose Torres.

“There are certain public employees that a condition of their employment is that they are loyal to the current elected office holder,” Puiszis said. “You can demand political loyalty of those persons…that’s one of those exceptions that’s out there when dealing with First Amendment cases.”

Were Heffernan a private employee, the case would depend on possible discretionary clauses in his contract. For example, private employees can be disciplined for actions outside of work, such as vulgar language on social media, if it is deemed they are hurting the company’s image in the process. Were a private employee to file suit against a company, they would need to prove they did not violate a contractual obligation, or that a specific anti-inflammatory clause violated First Amendment rights.

However, because Heffernan was a public employee acting as a private citizen, the case can be made that his First Amendment rights were violated.

The Court’s decision will undoubtedly change how public employers handle internal cases of misconduct. As Heffernan’s case shows, government offices need to be more careful about how they handle internal affairs, or they could be at risk of a lawsuit.

“If I’m a governmental official…I think my advice would be make reasonable investigations before you impose discipline on individuals,” Puiszis said. “A mistake in belief that someone was engaged in First Amendment activity, when in fact they were not, is no longer going to be a defense.”

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