SCOTUS hears the strangest 1st Amendment case in recent memory

posted at 12:41 pm on January 21, 2016 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?

scotus


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Comment pages: 1 2

We could easily cut the military by 10% to 20% with no loss of capability. It is as bloated as the rest of government.

MJBrutus on January 21, 2016 at 2:47 PM

That may be true, but that was not the crux of the WWII argument put forth, that we need a very small militia that would be ramped up during a world wide war.

Neitherleftorright on January 21, 2016 at 2:51 PM

We could easily cut the military by 10% to 20% with no loss of capability. It is as bloated as the rest of government.

MJBrutus on January 21, 2016 at 2:47 PM

So you agree with what the obama administration is doing.

RickB on January 21, 2016 at 2:54 PM

Neitherleftorright on January 21, 2016 at 2:51 PM

Agreed.

MJBrutus on January 21, 2016 at 2:54 PM

If you can be taxed for not engaging in economic activity, why isn’t free speech protections covering the case of not engaging in speech.

p0s3r on January 21, 2016 at 3:04 PM

It doesn’t matter what the original intent was because it is a social compact and those people are no longer part of the social body.

Kenny Bania on January 21, 2016 at 2:43 PM

They’re waiting for you up in Headlines. One of those online “polls” you adore so much has bad news for your Screech Lady!

Del Dolemonte on January 21, 2016 at 3:05 PM

If it’s “overt” enough to warrant discipline, then it’s “speech.”

Now that wasn’t that hard, was it?

EdmundBurke247 on January 21, 2016 at 3:06 PM

I find it strange that pornography is protected by “Free Speech” but putting a political yard sign in your Mom’s yard is not. I know it is not settled but…I can not believe any City would spend the money it takes to get a case to the Supreme Court over something as ridiculous as this.
But again, I could be wrong

Guest1.1 on January 21, 2016 at 3:10 PM

I would say that it has a chilling effect on his mother’s free speech. The city is preventing him from assisting his mother who wants to show support of her candidate by putting a sign in her yard.

It also sets the example of what will happen to others if they don’t play along with the powers that be thereby discouraging their free speech.

Vince on January 21, 2016 at 3:11 PM

It would work here if the American Militia were trained like the Swiss militia are.

And the Founders intended the Militia to be the backbone of our military.

Just as it was in the Revolution.

ConstantineXI on January 21, 2016 at 2:18 PM

And if the ‘American Militia’ wasn’t trying to be the Imperial Army

DarkCurrent on January 21, 2016 at 3:12 PM

While I’m thinking about it,

I don’t even think that public employees should be allowed to vote anyway.

ConstantineXI on January 21, 2016 at 12:47 PM

Nor should anyone on public welfare or taking public contracts.

earlgrey on January 21, 2016 at 2:49 PM

+10

We need less republic, and more democracy.. So I’ll go a step further and suggest that if you’re not paying income taxes or don’t own property, you shouldn’t be allowed to vote. That way those paying the bills will have a greater say in which bills get paid.

(And “No,” I don’t think it would result in the removal of all socially-compassionate programs.)

EdmundBurke247 on January 21, 2016 at 3:13 PM

Roberts is an idiot, and the Obamacare case proves it.

Senator Philip Bluster on January 21, 2016 at 3:17 PM

RickB on January 21, 2016 at 2:54 PM

Hell no. PBHO is cutting back our capability and not reforming/streamlining our forces.

MJBrutus on January 21, 2016 at 3:17 PM

With the military, that would be assuming we no longer wish to project ourselves into world affairs, and will wait for escalation of local conflagrations into world wars before we react.

Neitherleftorright on January 21, 2016 at 2:46 PM

With a state-based militia program, it would require much more political will to spend American blood and treasure just because a politician thinks we have to do something.

But, that’s OT, and needs a much longer discussion.

GWB on January 21, 2016 at 3:22 PM

I don’t even think that public employees should be allowed to vote anyway.

ConstantineXI on January 21, 2016 at 12:47 PM

Nor should anyone on public welfare or taking public contracts.

earlgrey on January 21, 2016 at 2:49 PM

Let’s put it this way, anyone whose overall cumulative federal tax balance is negative – to put it simply, the takers – should be denied the privilege of federal voting. I see no compelling reason to exclude public workers, however, as they are an integral (and sometimes even productive) part of the society. This criterion also makes a distinction between a retiree who paid taxes through his entire working life and an aged parasite who just switched one teat for another upon turning 65.

Rix on January 21, 2016 at 3:24 PM

No I pointed out how little I CARE about the founding fathers. There’s a difference.

Kenny Bania on January 21, 2016 at 1:46 PM

Thanks for telling us how you really feel about one of O’bama’s maternal ancestors, Kenny. He was in fact also an ancestor of some of those founding fathers you hate so much!

A hi-tech ancestry research firm located in (where else?) Hawai’i announced 8 years ago that O’bama’s (White) mother Ann Dunham was a direct descendant of the Hon. Laurence Washington, who built Sulgrave Manor in Northamptonshire, England. Washington’s other direct descendants include Founding Fathers George Washington and James Madison, and the final result is that Laurence Washington’s great, great, great, great, great, great, great, great, great, great, great, great grandson is, in fact, Barack Hussein O’bama.

F-

They also found that O’bama’s family tree is intertwined with that of Jimmy Carter’s. How fitting!

Del Dolemonte on January 21, 2016 at 3:35 PM

Much ado about nothing but the dislike by his superiors. He definitely has the rights of the 1st Amendment to pick up a sign for his mother and deliver it to her. The sign is also a sign of the right to free speech. If not, why did all the “occupiers” get by with their signs, etc. and was told it was free speech. Can’t have it both ways, SC, so give the man his right to speak even in carrying a sign that somebody doesn’t like. If the SC goes against him, take that as a very loud call to remove them, except for a couple who actually know the Constitution and defend it. They are appointed so can be fired, praise God. They, too, should have term limits of say no more than
20-25 years and never a lifetime. In the 1700’s men and women were old at 50 or 60 so it did not occur to them that as time goes by we would live longer, and in many cases be stupider, demented, etc. The officer was right, his boss was not and the boss should be removed from office. Everyone has the right to choose whom they will vote for! No likee, get over it and suck it up.

Roselle on January 21, 2016 at 3:41 PM

It has a chilling effect on his future speech and the speech of other officers in the department.

so yes, yes it does.

jake1246 on January 21, 2016 at 3:41 PM

hey JAZZ, if you read this, how about a story on the yogurt muslim who is bringing in hundreds of “refugees” to a small Idaho town, and getting other companies to do the same. ??

goodbye American workers, hello Trojan horse.

this will explain it

http://www.wnd.com/2016/01/yogurt-billionaire-hire-more-muslim-refugees/

Senator Philip Bluster on January 21, 2016 at 3:42 PM

Take away the government as an employer and this is a workplace civil suit. It’s the involvement of the state that pushed it into a 1A case.

BobMbx on January 21, 2016 at 3:50 PM

We could easily cut the military by 10% to 20% with no loss of capability. It is as bloated as the rest of government.

MJBrutus on January 21, 2016 at 2:47 PM

Our boys are putting their lives on the line with equipment that’s becoming obsolete. The military has been cut in real terms over the last 8 years; it needs a large increase.

Ricard on January 21, 2016 at 3:50 PM

Seems straight forward to me.

The officer was not engaging in speech, but his superior obviously thought he was, and demoted him deliberately to make an example of him to chill the speech of others.

The reality of his speech is not the issue, the obvious goal of suppressing free speech by the department is the issue.

Sackett on January 21, 2016 at 3:51 PM

I don’t even think that public employees should be allowed to vote anyway.

As a public employee, I’m ok with that. But I should also be exempt from taxes.

No? Remind me…what was it that really kicked off the American Revolution? any one? any one? Bueller?

I R A Darth Aggie on January 21, 2016 at 3:54 PM

To those who mentioned that Obama is shrinking our Military. Did you know we spend more than the next 7 countries combined?

http://www.pgpf.org/chart-archive/0053_defense-comparison

How can you claim you’re for being more financially responsible but be against this?

How much more do we need to spend to have a superior military? 10 times. 50 times. 100 times the rest of the world?

Politricks on January 21, 2016 at 4:01 PM

Ricard on January 21, 2016 at 3:50 PM

Because resources are badly allocated. Close down half the Pentagon. It’s full of brass making plans for war with Mexico and other foolish exercises. Bring our troops home from Europe and so many other places where we have had no mission for decades. End development of systems we don’t need and fund only the ones we really do enhance our security. The list can go on and on.

MJBrutus on January 21, 2016 at 4:06 PM

To those who mentioned that Obama is shrinking our Military. Did you know we spend more than the next 7 countries combined?

http://www.pgpf.org/chart-archive/0053_defense-comparison

How can you claim you’re for being more financially responsible but be against this?

How much more do we need to spend to have a superior military? 10 times. 50 times. 100 times the rest of the world?

Politricks on January 21, 2016 at 4:01 PM

Big deal.

The trolls always haul this over used mantra that means absolutely nothing when it comes to military preparedness, like military spending in terms of non-discretionary spending, another non sequitur.

Military spending is now 19% of the overall budget, the lowest percentage since the great depression.

Give me one valid argument that says that our military spending is no more financially irresponsible than Obamacare.

itsspideyman on January 21, 2016 at 4:11 PM

Close down half the Pentagon. It’s full of brass making plans for war with Mexico and other foolish exercises.

Which half?

Bring our troops home from Europe and so many other places where we have had no mission for decades.

And where are the other places we have no mission?

End development of systems we don’t need and fund only the ones we really do enhance our security.

And what would those be?

The list can go on and on

MJBrutus on January 21, 2016 at 4:06 PM

In a list that has no substance like this one, it certainly can.

itsspideyman on January 21, 2016 at 4:14 PM

We didn’t have a huge standing army of the size we needed to win World War II before we entered World War II did we? It was recruited and trained DURING World War II.

ConstantineXI on January 21, 2016 at 2:39 PM

And we took some very heavy losses early in the war because of that.
While I tend to agree at a basic level with most of your arguments, some of these things are far more complicated – as is modern warfare and the weapons and tools we now use.
If our entire military was comprised of just short term enlistees, and there were no career soldiers/officers, our military would not be capable of winning a modern war – not that we’ve really won much since WW2 – but that’s been because of our politicians not the actual military.

dentarthurdent on January 21, 2016 at 4:15 PM

Aannnd…….what the hell does the Military budget arguments have to do with this thread, or do your arguments have the same importance concerning the Military as your posts on this thread?

itsspideyman on January 21, 2016 at 4:16 PM

Speaking is thinking, thinking is speaking. Freedom of speech is freedom of thought.

Pole-Cat on January 21, 2016 at 4:19 PM

If he was wearing his police uniform he probably should not have picked up the sign. If he was on duty he should have not picked up the sign. If he was off duty in civilian clothes it’s no one else’s business. In the latter case I could see it being under the penumbra of speech.

gbear on January 21, 2016 at 4:21 PM

It would work here if the American Militia were trained like the Swiss militia are.

And the Founders intended the Militia to be the backbone of our military.

Just as it was in the Revolution.

ConstantineXI on January 21, 2016 at 2:18 PM

Funny how Congress ignores Article I Section 8 Clause 16, which requires Congress to ARM and TRAIN American citizens with firearms!

US Constitution, Article I Section 8 Clause 16: “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

And before the LIV idiots swarm in, let me point out that the Constitution leaves it up to the individual states to define who is considered part of their militia. Since I live in Ohio…

Ohio Constitution, Section 9.01: “All citizens, residents of this state, being seventeen years of age, and under the age of sixty-seven years, shall be subject to enrollment in the militia and the performance of military duty, in such manner, not incompatible with the Constitution and laws of the United States, as may be prescribed by law.”

dominigan on January 21, 2016 at 4:24 PM

Our boys are putting their lives on the line with equipment that’s becoming obsolete. The military has been cut in real terms over the last 8 years; it needs a large increase.

Ricard on January 21, 2016 at 3:50 PM

I’ve been working in/with/for the military since 1979, and I can tell you from my experience there is a lot of fraud, waste and abuse in the military, despite many efforts to weed it out.
I regularly see civil service people burning up travel money on boondoggle trips to Hawaii and other locations for no valid reason; perfect condition ceramic tile floors being chopped out and replaced because some GS no longer likes the color and “we have fallout money that we have to spend”, lots of other unnecessary things bought because “we have to spend the money or they’ll cut our budget next year”.

The military is bogged down with far too much bureaucracy – especially useless civil service bureaucrats who are more concerned about building or maintaining their own rice bowls than doing what the soldiers actually need – and they can’t be fired. And DoD is forced to spend far too much money on pork projects that the politicians want that the military doesn’t need.

Eliminate those problems, and we would have more than enough money in the budget to have by far the best military in the world.

dentarthurdent on January 21, 2016 at 4:28 PM

Let’s put it this way, anyone whose overall cumulative federal tax balance is negative – to put it simply, the takers – should be denied the privilege of federal voting. I see no compelling reason to exclude public workers, however, as they are an integral (and sometimes even productive) part of the society. This criterion also makes a distinction between a retiree who paid taxes through his entire working life and an aged parasite who just switched one teat for another upon turning 65.

Rix on January 21, 2016 at 3:24 PM

Would you include disabled veterans and retired military? Most of those pay no taxes either,yet I’m pretty sure they earned their right to vote even though many of them depend upon a tax-free government income.

TKindred on January 21, 2016 at 4:29 PM

Aannnd…….what the hell does the Military budget arguments have to do with this thread, or do your arguments have the same importance concerning the Military as your posts on this thread?

itsspideyman on January 21, 2016 at 4:16 PM

Good point. How DID we get so far OT?

dentarthurdent on January 21, 2016 at 4:30 PM

Aannnd…….what the hell does the Military budget arguments have to do with this thread, or do your arguments have the same importance concerning the Military as your posts on this thread?

itsspideyman on January 21, 2016 at 4:16 PM
——————

It was addressed to the people who were talking about the military budget.Try reading all comments before you make a reply or simply choose not to reply to things you know nothing about…

Politricks on January 21, 2016 at 4:35 PM

Big deal.

The trolls always haul this over used mantra that means absolutely nothing when it comes to military preparedness, like military spending in terms of non-discretionary spending, another non sequitur.

Military spending is now 19% of the overall budget, the lowest percentage since the great depression.

Give me one valid argument that says that our military spending is no more financially irresponsible than Obamacare.

itsspideyman on January 21, 2016 at 4:11 PM
——————-

Im not here to debate if it is or isn’t. My only point are those who use the empty talking points. Point is we spend way more money on the Military just like we spend way more money on Healthcare than other countries. So maybe people need to start asking why don’t we get better results for the amounts of money we spend instead of deciding we just need to keep throwing more and more money at these issues.

Politricks on January 21, 2016 at 4:38 PM

If it’s “overt” enough to warrant discipline, then it’s “speech.” Now that wasn’t that hard, was it?

Yes, the department clearly ruled it was speech. It was speech, even if ignorantly so. However, the cop’s lawyer may have presented a muddied case to gain standing and argued that “it wasn’t speech but was (mis)perceived as speech–since if it genuinely was overt (potentially disruptive) political speech then the dept could have been justified.”

In some cases with Govt as employer, govt has the right to limit free speech. But it’s clear to me the police dept went too far and does not have the right to limit speech as much as private businesses do. Even with work rules against “overt” speech that may be upheld in some circumstances, it was wrong/illegal to apply them as they did. So does the Fed govt have jurisdiction to decide a State matter? Is this a matter of free speech or simply a misapplied work rule? I think it’s both. Govt employer policy can ban some free speech but not all. Work rules cannot constitutionally ban all free speech merely because it is political, even if put in the employee manual and even if the boss thinks it is egregious and disruptive to say there is more than one person to vote for in each election–which is true also in the private sphere and especially in the public. A work rule may or may not be constitutional as written, but the punishment for the officer’s (naive/ignorant) free speech was unconstitutional, even though he was demoted and not fired.

G. Charles on January 21, 2016 at 4:39 PM

So, back ON topic – it IS a freedom of speech issue, at least because the chief demoted the cop because HE thought the cop was actively campaigning – i.e. exercising his 1st Amendment rights – in opposition to his own preferred candidate.
In addition – the act of demoting the cop because he was thought to be campaigning for the wrong candidate, was itself also active campaigning by the chief.

dentarthurdent on January 21, 2016 at 4:41 PM

If he was wearing his police uniform he probably should not have picked up the sign. If he was on duty he should have not picked up the sign. If he was off duty in civilian clothes it’s no one else’s business. In the latter case I could see it being under the penumbra of speech.

gbear on January 21, 2016 at 4:21 PM
__________________

I’ll agree. If he was on the clock then he shouldnt be exempt. If he wasnt then I see no issue.

Politricks on January 21, 2016 at 4:41 PM

dentarthurdent…

It depends..from the article. He was demoted because “of “overt” involvement in a political campaign.” Now for all we know there is some kind of work place policy against involvement in political campaigns while on the clock or in uniform. I still dont know how they swings from a free speech standpoint though.

Politricks on January 21, 2016 at 4:47 PM

Eliminate those problems, and we would have more than enough money in the budget to have by far the best military in the world.

dentarthurdent on January 21, 2016 at 4:28 PM

You’ll not see me disagree…but realistically, it will take far too much time to sift that out and shift the funds to ‘soldiers and arms.’ At the very least we need to immediately fund men and equipment and reduce the silly overhead over time.

Ricard on January 21, 2016 at 4:56 PM

Kagan makes sense.

Trump vs Sanders is a possibility.

I’ve read enough science fiction and fantasy to know what’s going on… I’ve been transported into an alternate universe.

malclave on January 21, 2016 at 5:13 PM

You’ll not see me disagree…but realistically, it will take far too much time to sift that out and shift the funds to ‘soldiers and arms.’ At the very least we need to immediately fund men and equipment and reduce the silly overhead over time.

Ricard on January 21, 2016 at 4:56 PM

Sadly – because it is a huge bureaucracy, I think it’s likely impossible to eliminate or significantly cut the fraud, waste, and abuse in the federal bureaucracy, short of total collapse or revolution.
The one and only thing the federal bureaucracy (not just DoD) does well is feed and grow and protect itself.

dentarthurdent on January 21, 2016 at 6:30 PM

I’ve read enough science fiction and fantasy to know what’s going on… I’ve been transported into an alternate universe.

malclave on January 21, 2016 at 5:13 PM

I’m heading to my personalized Total Perspective Vortex – where I am the center of the universe and everything is as I want it to be……

dentarthurdent on January 21, 2016 at 6:36 PM

Choosing not to speak is, in fact, exercising your freedom to say what you’d like: in that case, nothing at all.

Asurea on January 21, 2016 at 6:40 PM

I assume the fact he was a friend of the Mayor’s opponent was well known in the Department – after all, the Mayor’s opponent was a prior chief of that Department, so the veterans of that Department would know he was on good terms with the Chief.

Bottom line, someone saw him in the opponent’s campaign headquarters during “off duty” time – doesn’t really matter why he was there, to be honest – decided it was an offense to all that was right and decent that a member of OUR force would consort with the campaign of the candidate OUR CHIEF opposes, told someone up the line about it, and someone “up the line” lacked the maturity and grace to say “Umm … so what?”

Now, he was demoted, not fired, so, no, wrongful termination doesn’t fly.

But let’s say, for the sake of the intellectual argument, that there’s such a thing as “wrongful demotion.”

Saying the words doesn’t get the job done – what made the demotion wrongful?

“It’s stupid to do that” doesn’t cut it – there has to be a “right” from somewhere not to be demoted for visiting the campaign headquarters of the “wrong” candidate. What is it?

The collective bargaining agreement may well prohibit demotions for reasons not related to job performance.

That would be one basis for attacking the demotion.

If there is a state or federal law which protects employees in his position from retaliation for participation in political events – such things exist – then there’s another ground for attacking the demotion.

For the first amendment to work, you have to argue there’s a first amendment right to visit the campaign headquarters of a candidate opposed by your employer.

Sounds more like a freedom of association case than speech to me.

BD57 on January 21, 2016 at 7:01 PM

Hey, if the Commerce Clause can regulate not buying something, I guess the First Amendment can regulate not saying something.

Next up: accuse peace protesters of war crimes.

rasqual on January 21, 2016 at 8:21 PM

If you had any notion that Harvard wasn’t a massive waste of tuition money, the “education” demonstrated by Roberts and Obama should disavow disabuse you of it.

ConstantineXI on January 21, 2016 at 12:52 PM

There, FIFY
*** *** ***

The sign might as well have been a loaf of bread he was carrying as far as his intent went. It wasn’t his sign and he wasn’t using it as a means of expression: he was just delivering an object to his mother. The fact that it was a sign with a political msg. on it is merely incidental to the case.

In the mind of his (apparently biased) superior, he was involved in speech, and said superior acted to suppress such (perceived) expression by demoting the officer.

Once the government acts on what it perceives to be speech, it’s a 1st Amend. issue, notwithstanding the limited language of the amendment: there is a principle at the center of the written amendment that requires no stretch at all to apply here.

JCoulter on January 21, 2016 at 8:45 PM

Let me help Justice Roberts out here.

The chief demotes an officer because of “overt” involvement in a political campaign.

The “overt” involvement revolves around political signage — or, what we would call “speech” — because the sign is, in the end, political speech. There’s enough precedent on signage being considered both speech and press to fill volumes.

The question is whether a government employer should be allowed to punish an employee for speech which occurs outside of the job. We already know that even some signage displayed on the job is protected (such as an employee soliciting on their break for union representation), but would we not expect that signage off the job is entirely protected?

unclesmrgol on January 21, 2016 at 9:29 PM

The First Amendment is just freedom of speech, but freedom of association, which may be more applicable here. He was demoted because of his implied association with a candidate.

Coach Marty on January 21, 2016 at 9:35 PM

Sounds more like a freedom of association case than speech to me.

BD57 on January 21, 2016 at 7:01 PM

Note that there is no explicit “freedom of association” in the Constitution, other than when petitioning the Government.

But we can infer a freedom of association from every single element of the First Amendment. If I have freedom of speech, that give to all others the right to not listen to my speech if they don’t want to. If I have freedom of the press, that gives to all others the right to not read what my press prints. If I have freedom of religion, that gives to all others the right not to support my religion. But, conversely, it gives to those who want to listen, read, or worship with me an absolute right to do so.

And there it is. Noone has a right to prevent me from my speaking, writing, and worshiping, but I have no right to force others to listen, read, or worship as I do.

If that isn’t freedom of association, I don’t know what is.

unclesmrgol on January 21, 2016 at 9:36 PM

should have been “isn’t just freedom of speech”

Coach Marty on January 21, 2016 at 9:36 PM

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?

If contortions can be done for the likes of “Piss Christ” or whatever that vile thing was called, then this should be simple.

His

“overt” involvement in a political campaign

is a form of public expression, and therefore qualifies every bit as much if not more than some idiotic attempt at “protest art” or whatever that monstrosity is supposed to be.

The reason for the speech protection in the First Amendment, I believe, was most importantly a protection for anyone politically involved that isn’t in favor of those with political power.

hillbillyjim on January 22, 2016 at 1:54 AM

I haven’t read the comments, but if it hasn’t been said, there is also the simple answer that since the sign was the central to the case, then it is written speech at the heart of the matter.

Simple.

hillbillyjim on January 22, 2016 at 1:57 AM

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Olmsted v. United States – Louis Brandeis – Dissenting

ArthurMachado on January 22, 2016 at 6:19 AM

No question in my mind that this is a Free Speech issue. The Chief was punishing the officer for perceived speech. IE: He thought the officer was making a political statement and sought to punish him for it.

At this point whether the officer is actually speaking or not is utterly irrelevant. This issue is: Did the Chief attempt to punish someone on his force for speech that the Chief disagreed with? YES. NO QUESTION. This should be a slam dunk win.

wearyman on January 22, 2016 at 10:01 AM

Whether the cop believed he was engaged in free speech seems irrelevant. He was demoted for being perceived to be so engaged. The First Amendment is implicated either way.

regcheck on January 22, 2016 at 10:14 AM

he was demoted to patrol officer, being told flatly that it because of “overt” involvement in a political campaign.

This one is really easy.

If the above reason was the one given for his demotion, it was blatantly unconstitutional.

The fact that he wasn’t involved in the election is irrelevant. He was accused of it as if it was a demotion-worthy trespass, and the accusation itself is unconstitutional when coming from a government official.

Why did any lower court rule against him? That’s what we need to find out.

runawayyyy on January 22, 2016 at 10:26 AM

wearyman on January 22, 2016 at 10:01 AM

Like wearyman said….

runawayyyy on January 22, 2016 at 10:27 AM

I’m heading to my personalized Total Perspective Vortex – where I am the center of the universe and everything is as I want it to be……

dentarthurdent on January 21, 2016 at 6:36 PM

You one-percenters can afford anything! Not fair! I want my perspective thingy too!!!

H8R

runawayyyy on January 22, 2016 at 10:33 AM

The devil may be in the details.

If he was wearing a police uniform when he picked up the sign, it could be taken as signaling that the police are for one candidate over another. The same reason that military members can participate in all forms of political activity, but never in uniform, so that they don’t imply that the Army or Navy as a whole is backing a candidate.

Of course, that also depends on whether this particular city has a similar rule for the police department. But I can easily see how picking up a yard sign from a campaign office in uniform could be a violation of department policy and lead to a demotion for overt political activity. In such a case, there would not be a violation of free speech at all, since the person would not be penalized for political speech if done purely as a private citizen.

If this case is being heard by the Supreme Court, surely it’s not just a dispute whether he was wrongly demoted, but a question of whether their policy is permitted under free speech laws. Which means they probably prevent any overt political activity by police officers, and don’t make a distinction between political activity as a private citizen and political activity as a police officer.

There Goes the Neighborhood on January 22, 2016 at 10:52 AM

We didn’t have a huge standing army of the size we needed to win World War II before we entered World War II did we? It was recruited and trained DURING World War II.

Every part of government needs to get smaller. Including the military.

ConstantineXI on January 21, 2016 at 2:39 PM

Our military at the beginning of World War 2 was too small to be effective. We probably spent two years extra in the war because it took a great deal of time to ramp up the military enough to fight the war effectively. And it’s entirely possible that being better prepared for war might have discouraged Hitler, Mussolini, and Hirohito from launching all-out war.

Which is why World War 2 completely changed our approach to military preparation and foreign policy.

It’s inevitable that the military will shrink in time of peace and grow in time of war, but how much it can safely shrink in peace time is a different question entirely. Shrink it too much, and the war can be effectively over before we can even get started.

There Goes the Neighborhood on January 22, 2016 at 11:01 AM

The First Amendment is just freedom of speech, but freedom of association, which may be more applicable here. He was demoted because of his implied association with a candidate.

Coach Marty on January 21, 2016 at 9:35 PM

If you disallow the explicit “Freedom of Association” as not being verbatim in the Constitution, then there are TWO other problems to invoke.
First, the “petition for redress of their grievances” clause: his mom was exercising that right, and he was thereby exercising that right as well. (The grievance being, the “wrong” person was in office.)
Second, Due Process: he was demoted for a cause, which he was not allowed to dispute. You’re supposed to be able to face your accuser, have a lawyer, a jury of your peers, etc.

ReggieA on January 22, 2016 at 11:59 PM

Not sure there is much of a claim here. The demotion decision may have had other components, so it comes down to whether rules for promotion and demotion are contractual in employment agreements. Probably not. He’s wasting court time and should just get a different job.

A lot of employment is “at will” so the employer’s mistake was to get too specific about it. Alternatively, they could have just changed their decision. Both parties have wasted a lot of time, one likely expecting a big payday from their town.

virgo on January 24, 2016 at 7:07 AM

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