Heffernan v. City of Paterson involves a New Jersey police officer who was demoted after he was seen picking up a campaign sign for the “wrong” mayoral candidate (in case you’re wondering, in Paterson, NJ, the “wrong” candidate equals “not the incumbent”). Officer Heffernan sued and won at trial, but with a twist—he claimed that his demotion was the result of a mistake because he was not actually supporting the challenger, just doing a favor for his bedridden mother. The Third Circuit reversed and held that there was no First Amendment violation because Officer Heffernan was not exercising any First Amendment rights. This created a split with the First, Sixth, and Tenth Circuits, all of which had ruled in favor of public employees fired or demoted because of their “perceived” political association or their political neutrality.

Officer Heffernan, joined by the Solicitor General, argued that it was the City’s motives that mattered and that in any case, it is blackletter law that the First Amendment protects political neutrality. Tom Goldstein argued for the City that its motives were irrelevant because Officer Heffernan was politically apathetic—not neutral—and he never intended to exercise his First Amendment rights in the first place. Officer Heffernan’s counsel had difficulty identifying the precise right his client was asserting, while Goldstein struggled to explain why the First Amendment protects political neutrality but not apathy—and how to tell the difference.

The justices’ questions centered around two themes: Motive (the City’s was clear, Officer Heffernan’s was not), and whether the Constitution is primarily a check on government power or a guarantor of individual rights. Justice Kennedy seemed focused on identifying the First Amendment right that Officer Heffernan was asserting—the right to be free from intrusive government oversight of one’s political beliefs? Or something else? Chief Justice Roberts wanted to know whether there was an adequate alternative remedy under New Jersey law. And Justice Scalia asserted that, although the government’s motives were clearly impermissible, the Constitution was primarily intended as a guarantor of individual rights, not a check on government power. This statement prompted Justice Ginsburg to remark wryly that the text of the First Amendment says “Congress shall make no law…”.

Justice Kagan, on the other hand, seemed quite skeptical of the rule proposed by the City: the First Amendment protects political neutrality, but not apathy. Justice Ginsburg chimed in, reminding the Court that Title VII has long protected employees from discrimination based on their employers’ perception of their characteristics—a turbaned Sikh who is passed over for promotion because his employer believes him to be a Muslim is still entitled to relief, even though his employer is mistaken about his faith. Justices Sotomayor and Breyer both asked questions that indicated they shared Justice Kagan’s skepticism, while Justice Alito asked hard questions of both sides, at one point remarking that the “highly artificial” facts of the case made it like “a law school hypothetical.”

After an hour of analyzing Officer Heffernan’s motives, one thing was clear: contemporary freedom of association doctrine has lost its way. As the Becket Fund argued in its amicus brief, the Justices would do well to re-root freedom of association in the textual “right of assembly.” Once regarded as the most important First Amendment right—because it safeguards all the others—in the past seventy years the concrete “right of assembly” has been replaced with the more abstract and weaker freedom of association. Clearing away questions about Officer Heffernan’s subjective intent (neutrality or apathy?), the Justices would be free to ask: is going to a campaign office to pick up a political sign to help your mother express her political views an act of “assembly” that the Framers would recognize? Put that way, the answer is clearly yes.