Reviewing the First Amendment: Will the Supreme Court Abide?

Many Americans are confronted daily with government behavior that infringes on their First Amendment rights.  Few know when, and how, to attack those infringements.  Others are blissfully unaware of the complex interplay between their freedoms of speech, assembly, association, press and religion on their rights and that of the government.   Pop culture, like a mirror, tends to reflect our collective shortcomings in understanding of these basic rights.  A great illustration is  Walter Sobchak, John Goodman’s lovable know-it-all character in the seminal 90’s film “The Big Lebowski.” Walter, when faced with being told by a waitress that he should watch his language stated “[f]or your information, the Supreme Court has roundly rejected prior restraint.” That line, in context, has drawn many a laugh both for its forcefulness and its absurdity.  Like many Americans, Walter knows that the first amendment offers some protection for his speech or actions. Like many American’s, Walter’s views are too simplified, overbroad, or just incorrectly applied.  In real life, it isn’t a laughing matter when an apparent exercise of one’s First Amendment rights shades into previously un-adjudicated area and ends up with a real economic harm. Almost on cue, a Supreme Court case has arisen that can help aid our collective understanding of the First Amendment.  On January 19, 2016 the Court heard oral arguments for the case styled Heffernan v. City of Patterson, New Jersey[1].  The Supreme Court will decide whether ‘’the First Amendment bars demotion of a public employee based on the employee’s support of a particular political candidate.”[2] In simpler words, the question is whether a government employer can punish a government employee for political affiliation.  The bright-line rule in such cases is best stated that “[a] public employer cannot take adverse action against non-political, non-policy making employee…because of that employee’s political and associational activity, such as voting for or supporting a candidate for office.”[3]

But the devil, as they say, is in the details.

Heffernan, a twenty-year veteran with the Patterson New Jersey police department, was at a campaign center carrying a yard sign for the mayoral campaign opposing Patterson’s incumbent mayor.  A member of the incumbent mayor’s staff saw officer Heffernan carrying the sign. The next day Heffernan was demoted from detective to patrolman.  In this case, Heffernan wasn’t actually exercising his protected First Amendment rights.  That is, Heffernan wasn’t there to support the challenger’s campaign, nor to make any political statement at all. Heffernan was simply getting a yard sign as a favor for his bed-ridden mother.

Had Heffernan been actively advocating for the challenger’s mayoral campaign, the outcome would be easier to determine.  The First Amendment would likely prohibit a retaliatory action based on that sort of political speech.  The Third Circuit Court of Appeals, however, sided with the City of Patterson. As Heffernan was only carrying a political sign, and not actively supporting that political candidate, the Third Circuit seems to believe Heffernan could have been demoted as his actions weren't protected speech.  As Jeffrey Lebowski from the aforementioned film would say “that’s just like, uh, your opinion, man.”

Heffernan’s argument before the High Court, simply put, is that any government retaliatory conduct that chills political association is prohibited. That is a statement about the First Amendment that should be easy for all Americans to understand, even Walter Sobchak.  It certainly makes sense that if one is protected for holding a political sign to convey a message, that another who is simply conveying the same political sign should be protected as well. Here is to hoping that the Supreme Court will follow that logic, undo the absurd holding of the Third Circuit, and like Lebowski’s The Dude, abide. We will all be better for it.

— 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://www.supremecourt.gov/oral_arguments/argument_transcripts/14-1280_1qm2.pdf

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

[3] http://www.scotusblog.com/2016/01/argument-preview-the-first-amendment-public-employment-and-misperceived-political-association/

See also: http://capcityfreepress.blogspot.com/2015/10/david-l-hudson-jr-supreme-court-to.html