Frost, Heffernan’s lawyer, gets off to a bumpy start this morning when Justice Anthony Kennedy asks him almost immediately how he would “define the right at issue in this case.” Frost tries to explain that there is a right to not be demoted for perceived political associations, but Roberts cuts him short: “Well, but 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. That he was not engaging in association, he was not engaging in trying to convey a message, he was just picking up a sign for his mother.”We'll have to wait for the verdict, but right now it seems that there is no constitutionally protected right to engage in carrying a yard sign for your mother.
Justice Antonin Scalia tags in: “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.”
Sunday, January 24, 2016
Does the First Amendment Protect You from Mistakes?
Back in 2006, police detective Jeffrey Heffernan of Paterson, New Jersey, was seen carrying around a yard sign for a candidate in the mayoral election. The candidate of that sign lost, and after the election Heffernan was demoted to beat cop. He sued. A jury awarded him $105,000, but the judge vacated the verdict, and an appeals court agreed. After all, Heffernan hadn't actually been exercising his First Amendment rights. He was only mistakenly thought to be exercising his First Amendment rights, and the constitution doesn't say anything at all about that. The issue was argued in the Supreme Court this week:
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Am I correct in my understanding that the problem here is that his lawsuit sought damages on improper grounds? That if his lawyers hadn't tried to invoke the First Amendment in regards to the alleged wrongful termination of employment, it wouldn't have ended up overturned?
What happens if the case gets thrown out? Retrial on more suitable grounds?
Yes. The justices asked why he didn't just sue under civil service rules.
It sounds like the client got bad legal advice from someone who was either dumb or trying to make a name for themselves.
Here is my very admittedly non-legal view.
The Court would not have heard this case if it were this simple. I think they are messing with the attorney because his argument is the wrong one. There is a real 1st amendment issue here. Can you discipline someone for making an unintended political statement? Or can you discipline someone if it was intended? Either way it's a political statement -- or it's being interpreted that way by his employer -- so it boomerangs back on the 1st.
Yes, the case wouldn't be before the court if four justices hadn't voted to take it. Mre from the source:
Ginsburg pops in for a quickie: “Mr. Goldstein, let’s take a Title VII case, and the employer fires a woman because he thinks she’s pregnant. She brings a sex discrimination case and alleges, ‘Well, I wasn't pregnant. I just was gaining weight.’ So she has no sex discrimination claim, because she wasn't pregnant?”
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