This morning the Supreme Court issued Heffernan v. City of Paterson, reversing by a 6-2 vote the Third Circuit, holding:
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 under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.
Here, police officer Heffernan was fired after he was seen getting a political candidate’s yard sign. In reality he picked up the sign for his mother, but he was fired based on the mistaken view that he was supporting that candidate himself. In a decision I described at the time as “wacky” and a head-scratcher, the Third Circuit had affirmed summary judgment against Heffernan, without oral argument, on the theory that he was not actually exercising his First Amendment rights.
The Supreme Court remanded for further proceedings on whether the employers acted pursuant to a neutral policy.