United States Supreme Court justices heard the case of former veteran police officer Jeffrey Heffernan on Tuesday morning to determine whether a First Amendment violation occurred when he was demoted for perceived political ties to mayor Jose “Joey” Torres’ opponent in the 2006 mayoral election.
Some of the justices were skeptical about Heffernan’s claim his First Amendment rights – free speech and association – were violated when the Torres administration demoted him after he was spotted picking up a sign from the campaign of Lawrence Spagnola for his ill mother.
Heffernan claims he was neutral and did not take sides in the election. “He was not expressing any First Amendment view whatever. I mean, he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason,” said justice Antonin Scalia.
The Torres administration perceived he was supporting Spagnola even though the former detective did not live in the city.
“What is the right that he’s asserting?” asked justice Anthony Kennedy. He wondered whether there was a policy that required employees to be politically neutral.
Chief justice John Roberts asked Heffernan’s attorney Mark Frost whether there was some sort of a state civil service protection or some other remedy for his client. “Maybe this shouldn’t be a constitutional violation if there are adequate remedies to address what may or may not be a First Amendment issue,” he said.
“Your client was neither speaking nor associating. So how could he possibly have a cause of action under the First Amendment?” asked Scalia.
Frost argued that it ought to not matter whether he was exercising his free speech and association rights, but that the government perceived he was and took adverse actions against Heffernan.
“If government perceives that you are engaging in a political activity and the motive is to suppress one’s beliefs and associations or nonassociations, then you look at it through government’s analysis,” said Frost. “Here they evaluated the facts that he was engaged in campaigning.”
Frost said it also has a chilling effect on other city employees’ freedom of speech. “That just doesn’t carry water,” responded Scalia.
Ginger D. Anders, assistant to the Solicitor General of the United States, argued, “We think” Heffernan “has a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs.” She said a ruling against Heffernan could create a loophole which can be exploited to send message to those engaging in political activity by taking action against a neutral party without violating the First Amendment.
Tom Goldstein, who represented the city, argued Heffernan was not politically involved and therefore neither his free association nor his freedom of speech rights were violated. “He didn’t have any more association than I did. He was politically oblivious,” Goldstein told the justices.
Justice Elena Kagan questioned Goldstein: “Suppose there’s somebody who comes into office, and it’s a Democrat. And he says I want as many Democrats as possible in my office, no matter what jobs they’re doing. Now, what you’re saying is he can’t demote or fire Republicans. He can’t remove, demote, or fire people who have other political views, neither Democrat or Republican. But what he can do is he can get rid of anybody who is just politically apathetic.”
“If that was actually the policy, then technically, the answer to your question is yes under the First Amendment,” responded Goldstein.
“Doesn’t that chill the person from even walking by a campaign? Doesn’t it chill others who do want to associate marginally?” stated justice Sonia Sotomayor.
Justice Ruth Bader Ginsburg drew a parallel to Heffernan’s case with that of a woman fired for being pregnant when she was only gaining weight. “The employer fires a woman because he thinks she’s pregnant. She brings a sex discrimination case and alleges, well, wasn’t pregnant. I just was gaining weight. So she has no sex discrimination claim, then, because she wasn’t pregnant?” she asked.
Justice Stephen Breyer said “in law there is a doctrine where the person who does the bad thing makes a mistake, he’s held anyway.”
“If somebody had come 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,” said Kagan. “That’s the whole point of the First Amendment. And 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.”