SCOTUS hears the strangest 1st Amendment case in recent memory

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By Jazz Shaw

For all of you court junkies, the Supreme Court is considering a truly bizarre case out of New Jersey this month. It’s ostensibly a free speech question – or at least it sounded like it at first – but as the details emerged the entire thing was turned on its head. It all started nearly a decade ago when Paterson, New Jersey police officer Jeffrey Heffernan went to pick up a yard sign for the upcoming mayoral election. The sign, as it turned out, wasn’t even for him. He was going to deliver it to his mom, who was bedridden. The problem is that his boss – the Chief of Police – was a big supporter of of the current mayor, while Heffernan and his mother were friends with the challenger, a former police chief. But Heffernan wasn’t talking about the election, nor was he even displaying a sign on his own property. For that matter, he didn’t even live in Paterson and couldn’t vote in the election anyway. He was pretty much keeping his nose out of it.

Unfortunately for him, he was seen picking up the sign and the very next day he was demoted to patrol officer, being told flatly that it because of “overt” involvement in a political campaign. That’s some pretty shoddy treatment, as I’m sure you’ll agree, and it kicked off a court case which was bounced around with victories and losses until it finally wound up in the hands of SCOTUS.

Here’s where it gets strange. When the justices got hold of it, at least some of them indicated that Heffernan didn’t have a leg to stand on because he hadn’t been involved in any speaking or political engagement. (WaPo)

“The First Amendment talks about abridging freedom of speech, and I thought the case came to us on the proposition that he wasn’t engaging in speech at all,” Chief Justice John G. Roberts Jr. said, adding: “I’m not sure how he can say his freedom of speech has been abridged.”

Elena Kagan disagreed.

“If somebody had come in to me before today’s argument and just said ‘Does the First Amendment prevent the government from punishing a person because that person does not share the government’s views?,’ I would have said, ‘Why, yes, of course the First Amendment protects that,’ ” Kagan told lawyer Thomas C. Goldstein, who was representing the city of Paterson.

“Now you’re telling me, no, the First Amendment does not prevent the government from punishing a person because that person doesn’t share the government’s views, unless that person is actively opposed to the government’s views.”

At first blush this sounds like a case the cop should win. It’s a horrible reason to give someone for demoting them and speaks to favoritism, cronyism and all that’s bad about politics. But is it a free speech case? That’s the basis of the complaint after all and Roberts has a point in saying that nobody was suppressing the officer’s speech since he wasn’t really speaking as such. But does Kagan’s argument carry any weight? Is it a suppression of speech if you are punished for failing to enthusiastically support a candidate?

That still sounds “wrong” in terms of terminating someone, but I’m again failing to see if it qualifies as “speech” for purposes of this case. I’ll toss it out to you guys. Isn’t this more of a straight forward case of wrongful termination which could have been handled at the state level rather than turning it into a First Amendment case?

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