It's the thought that counts

The Supreme Court has issued the rare case that expands First Amendment rights for public employees, ruling that a police officer who did not actually engage in free speech was protected from retaliation when his employer mistakenly thought that he did engage in free speech.

The case is Heffernan v. City of Paterson, decided on April 25. Heffernan was a police officer who did his ailing mother a favor by retrieving some political signs from her favorite political candidate and placing it in her front lawn. But, as the Supreme Court says, "Heffernan was not involved in the campaign but had picked up the sign simply to help his mother." Heffernan's supervisors did not know that Heffernan did not care about the political campaign. They thought he was an active supporter of the candidate, Spagnola. Word got out that Heffernan was seen retrieving the sign, and the police department retaliated against Heffernan because the commanding officers did not like Spagnolia.

Does Heffernan have a case? Your instinct would say that he does not because Hefferman did not actually engage in free speech. Which means that no one punished Hefferman for his speech. Since the First Amendment says the government cannot punish you for free speech, he cannot have a case, right? Wrong. A 6-2 majority that includes Chief Justice Roberts and Justice Kennedy says Heffernan can sue for money damages.

The Court draws from Waters v. Churchill, a Supreme Court ruling from 1994 that says the government can punish a public employee if it mistakenly but in good faith thinks the employee did not engage in free speech. That is, if the employer thought the plaintiff had simply engaged in office gossip but had in fact engaged in a political discussion which is protected under the First Amendment. The employer's motive mattered, not what the employee actually said. Twist that logic around and Heffernan has a case. What's good for the goose is good for the gander. Justice Bryeyer actually says that in this opinion. If the motive is bad, then we have a constitutional violation. I am not sure the Court always decides cases this way, but it does so here.

Heffernan also wins because the Supreme Court thinks about the implications of allowing the Police Department to get away with the retaliation. Heffernan's retaliation "tells the others [in the department] that they engage in protected activity at their own peril." The government essentially "acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity." Plaintiff was harmed by that policy. The Court does not tell us exactly how that "policy" exists in this case. Section 1983 junkies will think about how Monell plays into all of this. Under Monell, the government effects a policy -- even if unofficial -- if a top policymaker does something that violates the Constitution. The Police Chief is the one who fired Heffernan, so maybe that counts. But maybe not. Maybe the City Council is the policymaker in a case like this. The Court does not delve into these issues.