MRR Article: U.S. Supreme Court Rules Public Employees Permitted to Challenge Discipline Based on Political Activity – Even When Employee Not Actually Engaged in Political Activity


The First Amendment prohibits public entities from dismissing or demoting an employee because of the employee’s engagement in political activity.  Therefore, if a public employee engages in political activity and is dismissed or demoted as a result, the employee has an actionable claim under 42 U.S.C. §1983.

However, in the recent case of Heffernan v. City of Paterson, New Jersey, the United States Supreme Court was presented with the question of whether a public entity can be held liable under 42 U.S.C. §1983 for dismissing or demoting an employee when the demotion or dismissal is based upon the public entity’s mistaken belief that the employee engaged in political activity.  In other words, is it possible for a public entity to deprive an employee of the right to engage in political activity if the employee never actually engaged in said political activity?

In a 6-2 decision, the U.S. Supreme Court answered that question in the affirmative, ruling that when a public employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. §1983, even when the public employer’s actions are based on a factual mistake about the employee’s behavior.  The Court relied heavily on the concept that the First Amendment’s language focuses upon government activity, not the activity of a deprived individual.  As such, it is the motive of the public employer in so demoting or dismissing an employee that matters, not whether the employee did or did not actually engage in political activity.

The holding in Heffernan v. City of Paterson, New Jersey is highly relevant for all public sector employers and an important reminder for all public entities that an employee should never be demoted, dismissed, or otherwise disciplined for any activity protected by the U.S. Constitution, regardless of whether the employee’s activity is real or perceived.  If there is ever a question as to whether the employee’s behavior is constitutionally protected, make sure to contact our office before any action is taken on behalf of the public entity.