Today, SCOTUS will hear oral arguments in Heffernan v. City of Paterson to decide "[w]hether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate." The city demoted Heffernan because of the mistaken perception that Heffernan supported the mayor's opponent in the mayoral race. The mistaken perception arose when a member of the mayor's security detail saw Heffernan holding the mayor's opponent's sign. Heffernan was picking up the sign for his bedridden mother. He could not vote in the election because he lived outside the city limits.
The district court and the Third Circuit held "that a retaliation claim lies only when the government retaliated against an employee who actually exercised his First Amendment rights." Howard M. Wasserman, Argument preview: The First Amendment, public employment, and misperceived political association, SCOTUSblog (Jan. 12, 2016, 1:53 PM), http://www.scotusblog.com/2016/01/argument-preview-the-first-amendment-public-employment-and-misperceived-political-association/