On April 26, 2016, the Supreme Court decided Heffernan v. City of Paterson, No. 14-1280, holding government employees who are demoted because their employer believes they are engaging in constitutionally protected political activity may challenge their employer’s action under the First Amendment of the Constitution and 42 U.S.C. § 1983, even if the employer was factually mistaken about the employees’ conduct.

In 2005, Jeffrey Heffernan was working as a police officer for the Paterson, New Jersey, Police Department, and Paterson’s mayor was running a contested reelection campaign. Members of the Department saw Heffernan pick up a campaign sign from the headquarters of the mayor’s opponent and concluded that he was supporting the opponent. On that basis, Heffernan was demoted. Actually, Heffernan had picked up the sign only for his mother.

Heffernan filed a section 1983 claim against the Department and argued that the Department’s actions violated his constitutional right to free speech. Both the district court and the United States Court of Appeals for the Third Circuit disagreed.

The Supreme Court reversed and remanded. It recognized that, “[w]ith a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” The Court assumed that the exceptions were inapplicable and that the type of conduct the Department thought Heffernan had engaged in was constitutionally protected. It then considered whether the Department’s choice to demote Heffernan was actionable because the Department perceived that Heffernan was exercising his constitutional rights when he retrieved the sign, although in fact he was not.

Finding that neither 42 U.S.C. § 1983 nor the Court’s precedent clearly answered the question, the Court cited Waters v. Churchill, 511 U.S. 661 (1994), and concluded that “the employer’s motive, and in particular the facts as the employer reasonably understood them,” are “what counts[.]” Reasoning that the First Amendment restricts Government conduct, it held that “[w]hen 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 and 42 U.S.C. § 1983—even if . . . the employer makes a factual mistake about the employee’s behavior.”

Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined. Justice Thomas filed a dissenting opinion in which Justice Alito joined.

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