On October 1, the U.S. Supreme Court granted certiorari in the case of Heffernan v. City of Paterson, which looks at whether a public employer is prohibited by the First Amendment from firing a public employee based upon his or her perceived political affiliation.
In Heffernan v. City of Paterson, specifically, police officer Jeffrey Heffernan was demoted from detective to a walking beat after being seen picking up a political sign for his bedridden mother. The sign was in support of a candidate running against the sitting mayor. This demotion, Heffernan claims, negatively affected his pay and chances of making sergeant. In general, public employees cannot be demoted or fired for political speech, according to the New York Times.
The suit was initially dismissed by the U.S. Court of Appeals for the Third Circuit, as the court bars claims based on perceived discrimination, the New Jersey Law Journal reported. However, several other courts, including the First, Sixth and Tenth, have ruled that employees who are demoted or fired as a result of mistakenly perceived association or speech have a right to bring suit.
The Supreme Court will be resolving this split in the circuit courts, ruling on whether the First Amendment applies only to actual speech or extends to a public employee’s perceived speech.
Mark Frost, who is representing the defendant, wrote in his petition to the court that such incidents “recurs frequently and affects millions of government employees.” In the brief for Heffernan, Frost continued to warn that allowing for perceived discrimination could create situations in which public employees could be punished based on what media they consume, who they consort with and other aspects of their personal lives.
In the opposition brief, lawyers for the City of Paterson argued claims of free speech retaliation are only actionable if the retaliation “was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.”