The Employer's Legal Resource: Improper Motive can Lead to First Amendment Violation, Supreme Court Holds, Despite Factual Mistakes by Supervisors


The mayor's race in Paterson, New Jersey, pitted the incumbent against a challenger. A Paterson police detective, whose mother was bedridden, picked up one of the challenger's yard signs at his mother's request to place in her yard. While he was doing so, other police officers saw him holding the challenger's yard sign and chatting with the challenger's campaign workers. Word got back to the Chief of Police and the detective's supervisor, both of whom were appointed by the incumbent mayor. The next day the detective was demoted for what his supervisors thought was his "overt involvement" in the challenger's campaign, a factual mistake on their part.

The detective sued the city under §1983, the federal statute which provides a cause of action for damages for constitutional violations by state and local government and officials when a person is deprived of a "right, privilege, or immunity secured by the Constitution" - in this case, the First Amendment. The question facing the Court was whether a violation can occur based on an employee's actual activity, or instead based upon the employer's reasons for acting, i.e., its motive, and the facts as the employer understood them.

In a previous case, the United States Supreme Court held that a government employer did not violate the First Amendment when it dismissed an employee based upon the reasonable belief that the employee's speech involved solely personal matters and acted on that mistaken belief. Here, the detective's supervisors mistakenly believed that the detective had engaged in protected First Amendment activity when they demoted him, when in fact he had not.
In a 6-2 decision, the U.S. Supreme Court concluded that it was the employer's motive and the facts as the employer reasonably understood them that matters. The Court thus held that the detective's First Amendment rights can be violated because of his supervisor's beliefs that he had engaged in constitutionally protected conduct, even though, in fact, he did not.

This case serves as yet another important reminder that motive matters when making employment decisions.

By Jon E. Brightmire,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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