U.S. Supreme Court

A Supreme Court ruling protects public employees against being demoted or fired for supporting the wrong political candidate in the eyes of their supervisors. (AFP / Getty Images)

David G. Savage
April 26, 2016

Just in time for the election season, the Supreme Court has strengthened the rights of the nation’s 22 million public employees to protect them against being demoted or fired for supporting the wrong political candidate in the eyes of their supervisors.

“The Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate,” Justice Stephen G. Breyer said Tuesday.

This applies, he said, even if a supervisor mistakenly assumes an employee is supporting a particular candidate. What counts is “the employer’s motive,” Breyer said.

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The 6-2 decision closes a gap in the law that prompted some judges to deny legal protection to municipal workers who were demoted because of their supervisor’s false perceptions about their political leanings. In these cases, judges said the 1st Amendment is only triggered when the employee actually spoke out or participated in a political campaign.

In Tuesday’s opinion, Breyer said the 1st Amendment extends more broadly and forbids the government from acting “upon a constitutionally harmful policy” of punishing political views, whether real or perceived.

The decision in Heffernan vs. City of Paterson revived a free-speech lawsuit brought by a New Jersey police detective who was demoted because he was seen carrying a campaign sign supporting the mayor’s opponent. In fact, he was simply putting the sign in his car to deliver it to his mother, not because he was supporting the mayor’s opponent.

But a federal judge in New Jersey and the 3rd Circuit Court of Appeals said Jeffrey Heffernan, the police detective, could not sue under the 1st Amendment because he did not engage in “1st Amendment conduct.” The appeals court said demoted employees can sue for retaliation only if they could point to an “actual, rather than perceived, exercise of constitutional rights.”

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