From the WSJ–another strong 1st Amendment Decision

WASHINGTON—The Supreme Court reinforced free-speech protections for public employees Tuesday, ruling that a Paterson, N.J., police officer can sue after being demoted when city officials learned he carried a campaign sign for the mayor’s political opponent.

The twist in the case was that the officer, Jeffrey Heffernan, said he hadn’t actually supported Larry Spagnola, a former police chief who was running against Paterson Mayor Joey Torres. Instead, he had picked up the sign on behalf of his bedridden mother, who asked him to get a replacement after a Spagnola lawn sign vanished ahead of the 2006 municipal election.

The Supreme Court previously has held that public employees can generally sue when a government agency punishes them for political activity undertaken on their own time. But a federal appeals court in Philadelphia dismissed Mr. Heffernan’s case, reasoning that since he delivered the sign as a favor to his mother rather than to express an opinion, no constitutional rights were violated by his demotion.

The Supreme Court by a 6-2 vote saw the case differently.

“The government’s reason for demoting Heffernan is what counts here,” Justice Stephen Breyer wrote for the court. “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… even if, as here, the employer makes a factual mistake about the employee’s behavior.”

Justice Breyer cited a 1994 ruling that said a nurse could sue a public hospital in Macomb, Ill. The hospital fired her for badmouthing the obstetrics department. The nurse maintained that rather than merely griping, she was raising policy questions about hospital practices, a matter of public concern protected by the First Amendment. In that case, “the employer reasonably but mistakenly thought that the employee hadn’t engaged in protected speech. Here, the employer mistakenly thought the employee had engaged in protected speech,” Justice Breyer wrote.

The opinion continued a pattern evident since the February death of Justice Antonin Scalia left the eight-member court wary of deadlock on ideological lines. Since then, its output has been characterized by a conservative-liberal majority issuing relatively short opinions avoiding sweeping conclusions. Tuesday’s decision, numbering eight pages, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Conservative Justices Clarence Thomas and Samuel Alito have tended to dissent, as they did Tuesday.

“Demoting a dutiful son who aids his elderly bedridden mother may be callous, but it is not unconstitutional,” Justice Thomas wrote, joined by Justice Alito.

Mr. Heffernan’s attorney, Mark Frost, said the case created new protections for “perceived association.”

“It instructs supervisors that if you are going to act with ill motives to suppress somebody’s rights, you’re still going to be held responsible,” he said.

Mr. Torres, a Democrat who has been Paterson’s mayor since 2002 except for the 2010-2014 term, didn’t return a call seeking comment. An attorney for the city said he had been directed not to comment on the decision.

Write to Jess Bravin at

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