Officer Heffernan had his day in court, and won. Last week, six justices ruled that Heffernan—who was demoted and eventually fired because his boss thought he was supporting the “wrong” candidate for mayor—could go forward with his First Amendment claim against the city of Paterson, New Jersey. The justices remanded to let the lower courts decide whether there was in fact an office policy against political campaigning, something Officer Heffernan denies. This common sense result reaffirms the longstanding rule that, outside of a few narrow contexts, government employers can’t condition employment on political affiliation. It’s a timely reminder in the middle of a contentious political season.
In an opinion written by Justice Breyer and joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan, the court concluded that it was the government’s motive that mattered, not whether the government was factually correct. This focus on the government’s action tracks the text of the First Amendment (“Congress shall make no law …”) and prevents the constitutional harm of discouraging employees from engaging in protected political speech. Writing in dissent, Justice Thomas (joined by Justice Alito, who hails from the Garden State), argued that the mere fact that the government has acted unconstitutionally does not mean that the plaintiff’s constitutional rights have been violated.
As the Becket Fund argued in its amicus brief, much of the sound and fury surrounding this case would dissipate if the court re-grounded its freedom of association jurisprudence in the freedom of assembly. Interestingly, First Amendment scholar John Inazu pointed out that Justice Thomas’ dissent is one of only a handful of recent opinions to recognize the right of assembly as distinct from free speech. Freedom of assembly is in the text of the First Amendment and has been crucial in protecting the right of significant social movements—abolition, labor—to share their ideas with new audiences despite sometimes violent opposition. Freedom of assembly protects the right to sit in on meetings, meet people, and ask questions, even if you decide not to commit to the political, social or religious movement you’re exploring. That kind of thoughtful, pre-commitment inquiry is crucial to a flourishing civil society, not to mention a functioning democracy. The Court should restore the “forgotten” freedom of assembly to its rightful place as the guardian of all the other rights protected in the First Amendment.