Frustration was in the air yesterday as the Court struggled with freedom of association in the oral arguments for Heffernan v. City of Paterson. Heffernan involves a New Jersey police officer who was demoted after he was spotted picking up a campaign sign for the “wrong” mayoral candidate. As it turns out, Officer Heffernan didn’t actually support the wrong candidate; he was just picking up a sign to help his bedridden mother. No matter: His boss, the chief of police, demoted him anyway.
Oddly enough, there was a lot of agreement in the case. All sides agreed that if Officer Heffernan had been demoted for actually supporting the candidate, the First Amendment would protect him. And all also agreed that if Officer Heffernan had deliberately chosen to remain politically neutral, he would also be protected.
But the parties disagreed about whether the First Amendment protected Officer Heffernan for doing something that he insisted was not intended to be a political endorsement. The justices and counsel argued in circles about Officer Heffernan’s “real” motives and whether the First Amendment protects political apathy (as opposed to political activity), and at the end of the hour there was more than a little frustration on display. Justice Scalia called the case “bizarre,” and Justice Alito said it was “highly artificial” “like a law school hypothetical.”
Their frustration was generated largely by the difficulty of pinning down exactly how relevant Officer Heffernan’s state of mind is, since he picked up the campaign sign for his mother and not for himself. But in a freedom of association case like this one, focusing on the plaintiff’s subjective intentions overlooks the substance of the First Amendment, which protects certain types of conduct. The major issue is really whether going to a campaign office and picking up a political sign – whether or not it involves actually helping someone else engage in political activity – is within the original meaning of “the freedom of speech” or “the right of the people peaceably to assemble.”
The confusion in yesterday’s argument seemed to emerge from the disconnect between the text of the First Amendment and the case law of “freedom of association” that has emerged during the last century. As the amicus brief from The Becket Fund points out, the First Amendment protects “the right of the people peaceably to assemble,” not some generalized “freedom of association.” The highly malleable concept of freedom of association tends to drift into forum analysis and questions about expressive content, whereas freedom of assembly protects peaceful gatherings of all kinds.
That distinction is important because it protects people as they act before taking a position or committing to a side. Thus, the right of assembly protects citizens when they assemble to inform themselves about issues and candidates, listen to a speaker, or—like Officer Heffernan—help someone else engage in political activity. Ultimately, the only real solution to the problem in Heffernan is returning to the text of the First Amendment to re-root the freedom of association in “the right of the people peaceably to assemble.”