Six weeks before New Jersey’s 2016 primary, the U.S. Supreme Court on Tuesday affirmed the First Amendment right to support a candidate without fear of retribution, even as lawyers prepare to fight another challenge to that right in the state.
Meanwhile, a new case involving political speech in New Jersey is winding its way to court. It involves a West Long Branch resident who was cited for flying Trump flags from his house.
In the just-decided First Amendment case the court ruled 6-2 that a government cannot fire or demote an employee for supporting a political candidate. The ruling comes in a 10-year old case Jeffrey Heffernan brought against Paterson after he was demoted from detective to beat officer when another policeman saw him picking up a lawn sign for the incumbent mayor’s opponent.
“When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action,” wrote Justice Stephen Breyer for the majority. “With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”
There was a twist in this case: Heffernan was not getting the sign for himself, but for his mother, who was ill. The US District Court had dismissed the case at Paterson’s urging, agreeing that Heffernan was not protected from demotion because he was not engaged in free speech since he was simply picking up a sign. The U.S. Court of Appeals agreed.
But the Supreme Court said what mattered was the government’s intention — “to prevent the employee from engaging in political activity that the First Amendment protects” — regardless of what Heffernan was actually doing.
“This is an important ruling,” said Ed Barocas, legal director of the New Jersey ACLU. “It recognizes a government employer’s motive matters. Here, the motive was to punish someone for supporting a particular candidate, or that is what is alleged.”
Stephanie Barclay, counsel for the Becket Fund for Religious Liberty, which filed an amicus brief in the case, agreed.
“This ruling applies broadly to all government employees. The Supreme Court reaffirmed the principle that with a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate,” she said. “Especially in an election year it is crucial that the rights of speech and assembly are protected. All Americans have to be able to participate in the political process without fear of retribution.”
Barocas said the court also recognized the “chilling effect” the government’s action could have on other workers. And it held that a person has recourse when he is “harmed by unconstitutional actions.”
The ACLU has defended the right of political free speech several times in the past and is now involved in the case of a West Long Branch resident cited for flying flags supporting Donald Trump’s presidential campaign.
The town ticketed Joseph Hornick for flying a flag that reads, “Trump — Make America Great Again!” A West Long Branch ordinance prohibits the display of political signs more than 30 days before an election. The ACLU calls that ordinance — and similar ones in numerous other towns in the state — unconstitutional. Hornick was first cited on March 25 and the penalties include a $2,000 fine or 90 days in jail.
“As an American, I shouldn’t have to pay that kind of price for expressing my beliefs,” Hornick, a longtime West Long Branch resident, said, adding he will not take down the flags. “I shouldn’t be punished for exercising my constitutional right to free speech. I’m not breaking the law by flying my Trump flags; rather, the borough is breaking the law by having this unconstitutional ordinance on the books.”
According to the ACLU, the First Amendment does not allow blanket bans on certain types of speech, even for limited durations, especially when it’s based on content.
Hornick has a municipal court appearance that is now scheduled for May 18.
“Year after year, we are informed of unlawful sign restrictions, and we need to threaten suit to get towns to act,” Barocas said. “Towns throughout New Jersey need to review their sign ordinances to make sure they don’t include unlawful restrictions. It is time to make our ordinances constitutional again.”
The ACLU-NJ has successfully challenged restrictions on the timing of political signs in the past, including through the representation of a Ron Paul supporter who was prohibited from displaying his sign by the Borough of Hawthorne, in Bergen County, in 2008. It has also fought similar ordinances in Wyckoff and Franklin Lakes.
While a decade old, the Heffernan case is far from over. The ruling kicks the matter back to the District Court for a full hearing. According to the ruling, “There is some evidence … suggesting that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign … Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it complies with constitutional standards … are all matters for the lower court to decide.”