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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