Victory for First Amendment goes largely unnoticed.

Back in February, I wrote about a pending case before the United States Supreme Court styled Heffernan v. City of Patterson, New Jersey, where at issue was whether “the First Amendment bars demotion of a public employee based on the employee’s support of a particular political candidate.”[1] On April 26th, the High Court ruled in a 6-2 opinion that “Heffernan’s employer demoted him out of an improper motive”[2], thus reversing the lower court’s rulings. Evan Bernick, Assistant Director at the Institute for Justice, wrote that “…the Court vindicated a principle that is fundamental to our First Amendment Jurisprudence: Government officials may not target speech arbitrarily – that is, on the basis of their mere will, rather than any constitutionally proper reason… This result should be celebrated.”[3] I agree. This is a great win for the First Amendment, but the ruling deserves a careful reading.

Howard M. Wasserman, writing for SCOTUS blog, opines that “…Heffernan’s victory may be only momentary. In resolving the main First Amendment issue, the court assumed that Heffernan was demoted specifically because (his supervisors believed) he was speaking in support of a challenger in the mayoral election. But there was some evidence that he was demoted not because of his perceived expression of political support for his candidate, but pursuant to a neutral office policy prohibiting all police officers from overt involvement in any political campaign.”

In other words, the Court affirmed a bright line rule that speech may not be targeted arbitrarily by government employers.  But, this perhaps was not arbitrary at all.  As the case was remanded, the lower courts will have to parse the City’s intent and the language of the supposedly neutral policy that police officers are to appear politically neutral.

For the time being, though, let us rejoice that the Supreme Court still believes the First Amendment offers some protection from government censorship.

— By Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] http://jurist.org/paperchase/2016/01/supreme-court-hears-cases-on-diversity-first-amendment.php

[2] http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf

[3] http://www.huffingtonpost.com/evan-bernick/supreme-court-strikes-blo_b_9795066.html?utm_hp_ref=politics&ir=Politics

[4] http://www.scotusblog.com/2016/04/opinion-analysis-improper-motive-can-violate-the-first-amendment-even-with-a-factual-mistake/