The First Amendment: Does the Government’s Intent Matter?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The Supreme Court recently heard oral arguments on the political speech case, Heffernan v. City of Paterson.[1] The case involved Officer Heffernan, who was demoted from his position as a detective because his department believed that he was supporting the adverse mayoral candidate.[2] More specifically, Officer Heffernan was observed acquiring a lawn sign for his ill mother, who supported Mr. Spagnola, a candidate trying to unseat the incumbent mayor.[3] The city demoted him because of his “overt involvement in a political election.”[4] Officer Heffernan maintains that he only picked up the sign for his mother and was not in any way involved in the political campaign.[5] He sued based on unconstitutional retaliation under the First Amendment,[6] alleging a violation of his freedom of speech and freedom of association rights.[7] Since the City intended to infringe on the political beliefs of Officer Heffernan, the Officer’s Constitutional rights were violated.

The Third Circuit and SCOTUS: Does Government Intent Really Matter?

The central issue in Heffernan is whether the intent of the government matters in a First Amendment case. In other words, does it matter that the government intended to deprive someone of their First Amendment rights, even though no speech took place? For example, if a government entity were to fire an employee for praying—a clear violation of the free exercise clause—when in fact the employee was not actually praying, but only thinking to himself, does the firing still result in a violation of the First Amendment?

The Third Circuit Court of Appeals affirmed the district court’s order of summary judgment, rejecting Officer Heffernan’s claims.[8] In evaluating his free speech claim, the court took issue with whether a jury could find that Heffernan actually spoke on a matter of public concern.[9] If he engaged in political speech, his speech would be protected under the First Amendment. The court evaluated whether Heffernan intended to communicate his political beliefs by picking up the sign. The court doubted this element because Heffernan repeatedly denied having any political involvement at all.[10] He also stated that he was only picking up a sign for his mother and that was all.[11] Therefore, according to the Third Circuit, Heffernan did not speak on a matter of public concern.

The court also rejected Heffernan’s freedom of association claim on the ground that Heffernan did not “maintain[] an affiliation with a political party.”[12] Heffernan argued that because he passively supported Mr. Spagnola and was close friends with him, a “political affiliation” existed.[13] Rejecting that argument, the court found that any political affiliation that might have occurred was mere cursory contact necessary to pick up the sign.[14] Therefore, no reasonable jury could conclude that Heffernan actually exercised his right to freedom of association.[15]

The Supreme Court is presently divided on the issue of government intent for purposes of First Amendment violations. At oral argument in front of the Supreme Court, Justice Kagan stated that if the Court dismissed Officer Heffernan’s claims, it would be permitting the government to punish someone that does not share its views any time that person is not actively opposed to those views.[16] For instance, those individuals who actively engage in political discourse would continue to be protected under the First Amendment, but the apathetic or partially-involved individuals would not. Here, Officer Heffernan, while he had political views, was not actively asserting those views. Therefore, the First Amendment would not protect him because the intent of the government does not matter, only the action of the citizen matters.

The Justices were clearly divided on whether Officer Heffernan actually associated with or spoke on a public matter.[17] Justice Scalia argued that although he was fired for the wrong reason, “there is no constitutional right not to be fired for the wrong reason.”[18] Moreover, Officer Heffernan was not associating or speaking.[19] In contrast, Justice Kagan argued that regardless of whether Heffernan was associating or speaking, his intent does not matter.[20] The First Amendment prohibits the government from retaliating against citizens for having views different from the government.[21] Therefore, the government’s intent is the critical inquiry.

Government Intent Should Be a Touchstone for First Amendment Rights

The Third Circuit gave little credence to Officer Heffernan’s rights under the First Amendment. Just because Heffernan did not actively assert his political opinion does not mean that he is not protected. The purpose of the First Amendment is to protect citizens from the government. Citizens lack adequate protection if they must act in certain ways in order to receive full protection. The government’s intent matters when the First Amendment is implicated. Although Officer Heffernan may have not asserted his First Amendment right, he was still punished by the government for having an unpopular political view. Even though he did not actually have that view, he was still harmed and his First Amendment rights were still implicated. Therefore, the Supreme Court should embrace Justice Kagan’s rationale and uphold the Constitutional rights of Officer Heffernan.

First Amendment Rights: Active Assertion or Implicit Fundamental Right

It is counterintuitive to allow a government to punish a person based on that person’s views, so long as that person is not actively asserting his views. Such a notion cuts against the fundamental idea behind the Bill of Rights and the Declaration of Independence. Certain inalienable rights, like life and liberty, are conveyed upon individual citizens at birth and these rights are in constant effect, existing continuously. Making individual liberties contingent on their active assertion diminishes their fundamental importance and meaning.

To determine if the government violated Officer Heffernan’s rights, the Court should evaluate whether the government punished him because he held opposing political views. Here, the government punished Heffernan because he was perceived as having opposing political views. Whether Heffernan actually attempted to politically express or associate himself by picking up the sign is of no consequence; the government’s sole intent was to punish him for having his opposing political views.

Underlying the First Amendment protections is the notion that the government cannot pass rules or act in such a way that infringes someone’s ability to hold certain political views. The First Amendment begins with, “Congress shall make no law . . . .”[22] If Officer Heffernan’s claims are dismissed, the Supreme Court will effectively establish a judicial rule that allows for the government to punish citizens for views that are different than its own. Ultimately, the right of freedom of speech and association is also a right against government action that adversely affects such rights, and the government action in this case did just that.

Does Intent Matter in Freedom of Association?

Although the Third Circuit seemed to give a lackluster analysis when evaluating Officer Heffernan’s freedom of association claim, and Justice Scalia seemed to write off the idea that he was associating at all, the freedom of association protects Officer Heffernan in this case. Even though Officer Heffernan disavowed any intention of supporting the candidate by picking up the sign, he was still associating with the campaign. The mere act of picking up the sign connected him to Mr. Spagnola’s political campaign and ideas.

 That Officer Heffernan did not have the intention to support the candidate when picking up the sign does not mean he did not associate with the campaign. His very presence means that he was in the literal sense, associating. In addition, the fact that the government actually punished him for doing so, regardless of his protests, suggests that his intention did not matter either. That he was seen with the candidate’s sign was enough to fire him for “overt involvement with a political campaign.” In effect, the Third Circuit’s holding protects only those people actively involved in asserting their First Amendment rights. Such a rule of law cuts against the Constitution’s fundamental ideals.

Conclusion

The government abridged Officer Heffernan’s First Amendment rights. Although he had no political intent in his mind, he still associated with the political campaign while he picked up the sign for his mother. The Constitution should protect him from the government’s retaliatory action regardless of his intentions because the government sought to punish him for having opposing political views. If Officer Heffernan’s claims are dismissed, apathetic citizens throughout the country could have their First Amendment rights taken away because they do not actively assert their political views. Allowing the government to get away with reprehensible behavior simply because Officer Heffernan’s involvement was passive does not honor the spirit of the First Amendment’s protections. It also severely limits the scope of the First Amendment, a tool used to prohibit the government from engaging in certain types of behavior. The Supreme Court should depart from the Third Circuit’s reasoning and protect the First Amendment rights.

[1] Heffernan v. City of Paterson, SCOTUS Blog, (Feb. 12, 2016), available at http://www.scotusblog.com/case-files/cases/heffernan-v-paterson/.

[2] 777 F.3d 147, 149 (3rd Cir. 2015).

[3] Id at 150.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8]Id. at 149.

[9]Id. at 152-153.

[10] Id.

[11] Id. at 153.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Transcript of Oral Argument, at 58 Heffernan v. City of Paterson, No. 14-1280 (U.S. argued Jan. 19, 2016).

[17] See Oral Argument generally.

[18] Oral Argument at 6.

[19] Oral Argument at 5.

[20] See Oral Argument at 46.

[21] Oral Argument at 58.

[22] U.S. Const. amend. I

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