Supreme Court Will Hear Public Employee Free Speech Case

Author: David B. Weisenfeld, XpertHR Legal Editor

October 8, 2015

As the Supreme Court began its new term, it added an intriguing employee political speech case to its schedule. In Heffernan v. City of Paterson, the Court is being asked to decide if the First Amendment bans a public employer from demoting a police officer based on his superior's perception that the officer supported another political candidate.

Public employers generally cannot take an adverse employment action based on an employee's political affiliations. But this case presents a twist on the issue. A New Jersey police officer claims he was demoted after his supervisor mistakenly believed that he supported the mayor's political opponent. The officer said he was merely picking up a campaign sign for his bedridden mother, who supported the mayor's challenger.

At trial, a federal trial court awarded the officer $105,000 in damages, but that verdict was later vacated. The Philadelphia-based 3rd Circuit Court of Appeals dismissed the case, finding that a public employee could not bring a retaliation lawsuit based solely on a perceived exercise of First Amendment rights. It reasoned that the officer could not claim a free speech violation if he was not actually supporting a campaign.

But three other federal appellate courts - the 1st, 6th and 10th Circuits--have ruled that public employees who are demoted based on mistakenly perceived, rather than actual, speech can still bring a retaliation claim against their employer.

In the police officer's petition to the Supreme Court, his attorney argued that this issue "recurs frequently and affects millions of government employees." He also claimed that the Third Circuit's decision, if allowed to stand, would dramatically chill the free speech rights of these employees.

The Supreme Court is expected to hear hour-long arguments in this employee speech case in early 2016.

The justices already have three other labor and employment cases on their docket, featuring the following issues:

  • Can public employees be compelled to pay union dues?
  • Is a people-search engine within the scope of the Fair Credit Reporting Act?
  • Was a class properly certified in a massive wage-and-hour case?

The Court may add more employment-related cases within the next few months.