Monday, October 5, 2015

SCOTUS Grants Cert. in First Amendment "Perceived Support" Case

SCOTUS kicked off their new season last Thursday with some cert. grants, including a new employment law case. The Court granted cert in Heffernon v. City of Patterson.

I blogged about this case earlier in the year following the Third Circuit's decision. Basically, a public employee claims he was demoted after he was spotted picking up a campaign yard sign supporting a particular mayoral candidate. He filed a First Amendment retaliation claim. As it turns out, he was just picking up the sign for his mother and was not attempting to make any political statement at all. So, the Court held that he had not engaged in First Amendment-protected speech.

The Petition for Certiorari describes the issue as:
Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.
At the time of the Third Circuit decision, I wrote:
But wait . . . are you telling me that a public employer can retaliate against an employee for supporting a political candidate if it turns out they're wrong about his actual support? Pretty much. The Court expressly rejected this "perceived support" theory ("where the employer’s retaliation is traceable to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right."). 
Game over. Employer wins, employee loses.
It turns out I was wrong. It was not "game over," because the Supreme Court will now hear this case. Instead, it's "game on."