Heffernan v. City of Paterson: Watering Down the First Amendment Retaliation Doctrine to Create a Perception of Protection for Public Employees

Peter J. Artese

In Heffernan v. City of Paterson, the Supreme Court evaluated whether an employee's First Amendment retaliation claim can survive if the employer believes that the employee engaged in protected First Amendment conduct, but the employee did not in fact do so. The Court analyzed a police department's demotion of an officer based on its mistaken perception that he participated in protected political activity. Without reaching the merits of the case, the Court held that a decision motivated by a perceived exercise of First Amendment conduct might violate the Constitution. While the Court justly ruled in the plaintiff's favor, the majority imprudently decided the case based on unreliable precedent, without fully explaining the impact of its holding. In the face of a circuit split surrounding the issue, the Court missed an opportunity to formally adopt a perceived affiliation approach by expanding on its firmly established political affiliation case law. As a result, the Court failed to establish a clear method for approaching future First Amendment public employment retaliation cases despite attractive and intuitive options. Thus, while Heffernan undoubtedly represents a victory for public employees' First Amendment rights, it may prove to be a hollow victory over time if future courts fail to build on Heffernan's fragile foundations.