In the late 19th century, Oliver Wendell Holmes, then a jurist on the Supreme Judicial Court of Massachusetts, wrote in McAuliffe v. City of New Bedford that a “petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
The ruling meant that police officer John McAuliffe did not have a free-speech right to engage in any politics while on the police force. This crabbed view of public employee First Amendment rights dominated the legal field for much of the 20th century.
Finally, the U.S. Supreme Court began to recognize that public employees shouldn’t lose their First Amendment rights to freedom of speech and association simply because they work as public employees. This term, the High Court has another police officer, First Amendment case worth examining: Heffernan v. City of Paterson.
In this case, Paterson, N.J., police officer Jeffrey Heffernan was demoted shortly after another police officer saw him pick up a mayoral candidate’s political sign for his bedridden mother. The problem is that the mayoral candidate named on the sign was the former police chief, not current officeholder Mayor Jose “Joey” Torres.
Heffernan alleged that the city, Mayor Torres, and the police director Michael Walker retaliated against him in violation of the First Amendment back in 2006, claiming both free-speech and free-association violations. A jury awarded him more than $100,000 on the free-association claim, but the judge in that trial belatedly identified a conflict, vacated the jury’s award, and removed himself from further proceedings.
After years of procedural wrangling, both a federal district court and the 3rd U.S. Circuit Court of Appeals ruled against Heffernan. The 3rd Circuit reasoned in Heffernan v. City of Paterson that Heffernan’s free-association claim fails because the law does not recognize a First Amendment claim based on perceived political affiliation.
The Third Circuit held that the First Amendment right of freedom of association only protects a public employee who actually exercises or shows political affiliation. The appeals court noted that Heffernan testified that he wasn’t affiliated with a mayoral campaign, just picking up a campaign sign for his mother.
Heffernan appealed to the U.S. Supreme Court, which granted review on October 1. The petition asking the court to hear Heffernan’s appeal says “Few constitutional questions have such direct impact on the everyday lives of so many people.” If the Court adopts the rationale of the 3rd Circuit, more than 22 million public employees nationwide could be fired or demoted merely if their bosses mistakenly perceive them to be affiliated with different political campaigns.
David L. Hudson, Jr. is the Ombudsman for the Newseum Institute’s First Amendment Center. He also is the author or co-author of more than 40 books, including The First Amendment: Freedom of Speech (2012).