In the SCOTUS: Public employees, political speech, & errands for Mom

Stamp or label with text Paterson, New Jersey inside
Heffernan v. City of Paterson 

By: Cara L. Gallagher, weekend contributor

On its face, the freedom to express support for a political candidate seems exactly like the kind of speech the First Amendment was intended to protect. But such expressions are limited for individuals who work in the public sector. Police, fire department workers, and public school teachers – because tax dollars pay their salaries, city officials can suspend or terminate such employees for certain forms of political expression. That’s not to say they can muzzle all political speech. Public employees are voters with opinions who are just as entitled to engage in political discourse as private employees. In the town of Paterson, New Jersey, however, “overt involvement in a political election” is one example of a regulation that public employees can be penalized for violating. On Tuesday, the Supreme Court heard a case about whether or not a police officer’s actions of picking up a political sign for a local election count as overt involvement in a political election or is protected under the First Amendment.

Jeffrey Heffernan was a twenty-year veteran detective for the city of Paterson in 2006. Heffernan’s bedridden mother wanted a yard sign for mayoral candidate Lawrence Spagnola, former police chief of Paterson. Since she was unable to pick up the sign, she asked her son to get her one. Heffernan privately supported Spagnola’s bid for mayor, but because of his residence, was unable to vote for him and was not publicly supporting his candidacy. Another Paterson cop serving as security guard to Spagnola’s opponent saw Heffernan enter the Spagnola campaign office to pick up the sign and reported it to Heffernan’s superior. Heffernan was immediately demoted to a walking post for his overt involvement in a political election. He is suing the Paterson police department for unconstitutional retaliation under the First Amendment.

Does picking up a political sign for someone else constitute political speech?

To answer that question you must consider what exercising one’s First Amendment rights actually look like. Must it be an explicit act of speech or expression associated with a political party? Or, can it be something minor like picking up a political sign for someone else? When we think of political signs, typically we think of the action that goes into embodying a belief, supporting the candidate who campaigns on that belief, and sticking a sign in our yard or on our car with their name on it as a way of publicizing that candidate. Picking up a sign for your mom’s yard hardly seems like exercising anything other than being an obedient son, and, perhaps the more complex caveat in this case, if it’s not his sign, how is it his speech?

A district court decided that, regardless of the public or private employment status of the person, taking a sign, even if you don’t intend to display it on your property, is an implicit endorsement of the speech and protected under the First Amendment. They awarded Heffernan roughly $100,000 in the retaliatory claim against the Paterson police department. However, the 3rd Circuit Court of Appeals voted in favor of the police department and said Heffernan can’t use the First Amendment as his defense because picking up a sign that he had no intent to keep or display for himself is not an expression of political speech.

A good police officer and son picks up the sign for his mom. That he was penalized for it is almost laughable as it hardly satisfies the “overt involvement in a political election” he was demoted for. But his constitutional claim is a bit too crafty. Heffernan said he had no political connections to the sign and never worked on the campaign or for the candidate, but that his actions should be protected under the First Amendment. How one distances themselves almost entirely from the candidate and campaign yet proclaims his right to freely express a political opinion about the candidate strikes me as dubious. Clearly the Paterson police department erred in their judgment of what Heffernan was intending to do with the sign, but mere possession of the sign, on behalf of someone else, hardly seems substantial enough to qualify as expression.

A decision in this case is expected late spring, early summer of 2016.

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15 thoughts on “In the SCOTUS: Public employees, political speech, & errands for Mom”

  1. Let’s see, cops can kill, maim, or harass innocent people for any reason and get away with it but picking up a political sign is grounds for a demotion? Didn’t god make nuclear bombs to take out cities like DC? That would eliminate most of the problems in America.

  2. Oral argument posed really interesting questions and hard to read what result will be. There’s just a feeling that something wrong was done to the detective. Yet, if he did not believe he was acting as First Amendment speaker, publicist, advocate, etc., it appears that Supreme Court may have to hang its hat on the pretty much uncontroverted fact that mayor’s “allies” perceived Heffernan as engaged in First Amendment conduct, but believed City had right to discipline acts which mayor’s allies perceived as politically partisan. One question, therefore, is whether City is liable under Section 1983 for acting under mistake of fact. While question exists about whether the Petitioner had any basis to “make a federal case out of it,” bigger question may be, “Why did the Supremes grant certiorari in case that did not appear to have any significant ripple effect? Perhaps the Court took the case to slap the wrists of local officials. In the end, like others who have commented, I hope that family values trump obnoxious behavior of the mayor’s cronies. The jury understood that there was something rotten in Paterson, so should the Court.

  3. “Most often Democrats.” Come on, 99.3% of the time they campaign for Democrats. It’s a rigged game. That’s what the California SCOTUS case, Friedrichs v California Teacher’s Association is about. I often say, I have learned as a PI you often learn more about how a person thinks by what they DON’T say. I think Cara spoke loudly here.

  4. If the cop shows up in a police car and in his uniform, and then loads the sign in the back of the police car: he violated the policy that public employees cannot overtly support a candidate.

    If the cop shows up in his personal car and in his civvies, and then loads the sign: he did not overtly support a candidate.

    Forbidding public employees from supporting elected officials is our first defense against graft and cronyism.

    I’m just not sure why public employee unions are allowed to openly/overtly campaign for candidates, most often Democrats.

  5. When I worked at a bank, the employees were told that we could not wear political buttons at work, could not put political signs at our desks or stations. That as bank employees were were to remain totally neutral and not “campaign” on company time.

    What we did on our own time was not an issue… long as we didn’t make any statements that would lead people to think that we were representing the company’s position. I also ran for and was elected to a small public office position while employed at the bank. This was a position in which there was no possible conflict of interest between the public office and the financial institution where I was employed.

    Because my position in the bank was prominent and people knew me, I was always careful to precede any statements with a disclosure that I was NOT representing the company and that my positions were my own.

    No one found this objectionable.

    In the case of a police officer, if he were IN uniform and participating in political activities or even just getting political/campaign materials I would suspect that people might think that he was representing the Police force. However, on his own time and dressed in civilian clothing, I don’t see how the officer can be punished for exerting his 1st Amendment rights of free speech and association.

  6. I think the demotion of Heffernan was more an act of political expression than Heffernan’s act, obviously perpetrated by a superior who was politically opposed to Heffernan. The bigger issue here is that the real perpetrator has not been held accountable for abuse of power that amounts to workplace retaliation, which would never go unnoticed if this was about sexual harassment. No honest justice is going to dismiss this wider view, never mind the political intolerance and in-fighting that has no place in the workplace.

  7. The Hatch Act takes away the ability to put political signs or bumper stickers or campaign for ALL FEDERAL EMPLOYEES. There’s a good reason for the Hatch Act. Govt. unions are dying and the union rats are crying.

  8. Political hacks trampling free speech again. Despicable. People in public service don’t give up their own rights just to protect others. They are fools if they do.

  9. This again is where common sense collides with legal and Constitutional gray. The officer should be compensated but not $100,000 and certainly not demoted. A reasonable and common sense approach would be a public apology from the other officer and all those who took part in this nonsense. The other officer should be reprimanded and obligated to take at least a year of courses at the local college in this subject matter. This is nothing more than the mindless actions we see in our public schools where students are suspended for benign and harmless activities and teachers are reprimanded for using good judgement but not dotting an i or crossing a t.

  10. The right of a public employee to exercise free speech is a mixed bag. There is an 8th Circuit case from Saint Louis where a state employee named Doris Bauers was allowed to put up signs which said Pay The Lobbyist with the hyphen: PTL. She did not mean Praise The Lord. But she was not allowed to put up a sign in favor of one political candidate over another. The plaintiff was trying to garner support for an employee union and for the union representative to hire a lobbyist to work for the good of the service employees at the state capital. The 8th Circuit said she could put up the PTL signs but not promote a candidate. Bauers v. Cornett, 8th Circuit, __ F.2d ___, 1988. I will get the cite.

  11. On a related matter: my buddy is a First Responder assigned to work at Super Bowl 50. The Feds associated with security offered to each FR working at the game, a special commemorative badge, which badge mentions “Super Bowl 50” and also the employer (such as SFPD).

    In her infinite wisdom, SFFD Chief Joanne Hayes White prohibited SFFD employees from purchasing the badge because it glorifies professional sports which tend to increase domestic violence.

    First, my buddy said, and he’s never wrong about stuff like this, that it turns out that there is no causal effect between pro sports and uptick in domestic violence. And even if there was, attempting to prohibit employees from purchasing something otherwise legal is nonsense.

    I suppose SF could sue the Feds for using “SFFD” without their permission, but I doubt that would fly very far.

  12. I am on the side of the officer here. It is clearly a personal act, not a political act and is protected. What kind of son would he be not to get the sign?

  13. Furthermore, I’ll bet if the officer had did the same act with for the “approved” politician nothing ever would have become of it.

  14. Interesting case.

    I just completed this weekend my mail-in ballot. There is a procedure where someone who is not able to complete the ballot themselves may be assisted by another person who would then attest to witnessing the procedure. Moreover, in our state if someone is unable to complete their ballot such as being in a nursing home, paralyzed, blind or otherwise an election worker will be dispatched to the person to receive their vote.

    In a sense, the plaintiff officer is providing a form of accommodation to his mother by obtaining a candidate sign for the purpose of the mother advocating her election choice. I truly find this case hard to believe the appellate level ruled as it had. I am not surprised in the least some small minded chief of police would be so vain and paranoid that he would go after one of his employees for something truly petty. This is certainly about stupid, small town politics. The taxpayers should be upset that the city wasted so much money on fighting this litigation and should have just let the matter go form the beginning. But their arrogance wouldn’t allow it since it is not their personal money at stake.

    I can only hope that the supremes will expand the scope of their ruling to add some broader first amendment protections beyond this signage issue. it would be quite just considering that stupid litigation brought on by mindless chiefs of police and officers often leads to case law they find works against them.

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