A new U.S. Supreme Court 1st Amendment case - factual mistake in sanctioning an employee for protected conduct is not a defense in a civil rights lawsuit

Yesterday, the U.S. Supreme Court has issued an interesting opinion where it protected, in a majority opinion, the right of governmental employees not to be punished for conduct protected by the 1st Amendment. 

Here is the opinion in full.

The case is decidedly weird, on many levels.

The gist of it is that a police officer was demoted because somebody saw him (and reported him to his supervisor) standing with a sign supporting a certain official in his election campaign and talking to that person's campaign workers.

The supervisor perceived that reported conduct of the police officer as participating in a political activity - which is not allowed to police officers and other government employees.

It was actually a misunderstanding.  The police officer held a sign he was bringing home to his bed-ridden disabled mother at her request, he did not support the campaign of that individual personally.

The big fight was that the officer was demoted and sued for discrimination on 1st Amendment grounds, among other grounds.

The dissent said that, since it was a misunderstanding and the officer did not ACTUALLY engage in political conduct, 1st Amendment cannot be invoked in his lawsuit.  In the opinion of the dissent, what was done to the police officer (demoting from investigator to patrol) was "callous, but not unconstitutional".

Whether the 1st Amendment could or could not be invoked by the officer in a discrimination lawsuit made a difference between whether the officer's civil rights case would be dismissed or allowed to proceed.

The U.S. Supreme Court reversed the lower courts' decisions and allowed the officer's case to proceed, stating that factual mistake is no defense.  If the officer's employer believed that the officer is demoted because of his participation in a political campaign, that was activity protected by the 1st Amendment, and the lawsuit could proceed.

The issue though is not that simple.

In fact, if the officer's employer believed that the officer did participate in a political campaign, and did that openly, so that his holding of the sign while talking to the campaign workers of a certain political candidate could send a message to the public that the local police endorses that political candidate, and where such political activity was prohibited as a condition of employment, the government was justified to demote or fire the officer, 1st Amendment or no 1st Amendment.

Such firing would definitely have met the required strict scrutiny test, because on the other side of the balancing test as to whether the 1st Amendment rights were violated and whether such a demotion or even firing would be permissible under the 1st Amendment, is the requirement of government neutrality and non-endorsement by the government of political candidates, to preserve integrity of democratic elections.

So, I am afraid, we did not see the last of that case, it can return to the U.S. Supreme Court after its round through the lower courts on remand, and, of course, I will report it if it does return.

Stay tuned.