You may recall back in January when we talked about the case of Jeffrey Heffernan. He was the cop in Paterson, New Jersey who was demoted because of “overt involvement in a political campaign.” At the time I described it as one of the strangest First Amendment cases ever seen in the courts. Here’s a thumbnail bit of the background as a refresher.

It all started nearly a decade ago when Paterson, New Jersey police officer Jeffrey Heffernan went to pick up a yard sign for the upcoming mayoral election. The sign, as it turned out, wasn’t even for him. He was going to deliver it to his mom, who was bedridden. The problem is that his boss – the Chief of Police – was a big supporter of of the current mayor, while Heffernan and his mother were friends with the challenger, a former police chief. But Heffernan wasn’t talking about the election, nor was he even displaying a sign on his own property. For that matter, he didn’t even live in Paterson and couldn’t vote in the election anyway. He was pretty much keeping his nose out of it.

Unfortunately for him, he was seen picking up the sign and the very next day he was demoted to patrol officer, being told flatly that it because of “overt” involvement in a political campaign.

This case was just a mountain of high strangeness right from the beginning. After being demoted, Heffernan retired and sued the department over his demotion, loss of pay and benefits because he hadn’t been involved in the election in any way, shape or form. He received a judgement in excess of $100K but that was later thrown out on appeal because since he wasn’t engaged in political speech his right of free speech couldn’t have been suppressed. The more I thought about that case the more twisted it seemed. The fact is, while demotion seemed incredibly and obviously unfair, I couldn’t really argue with the logic of the appeals court. Heffernan’s attorneys weren’t arguing that he was demoted unfairly.. they were saying that his First Amendment rights had been trampled.

Earlier this week the court finally ruled on the case and while even the majority agreed that the appellate court’s argument made sense, they tossed it out and gave the victory to Heffernan anyway. (NPR)

In the Supreme Court Tuesday, Justice Stephen Breyer summarized why the case was thrown out: The lower courts ruled that since Heffernan was not in fact campaigning for the mayor’s opponent, he was not exercising any free speech right. Therefore, he had not been deprived of any constitutional right, and could not sue.

“Sounds logical,” said Justice Breyer, “but we disagree.”

The critical issue here, he said, is the government’s motive in demoting or firing an employee, and it really doesn’t matter if the motive is based on real facts or a mistaken belief.

I’m happy for the plaintiff because it clearly seemed to me that he’d gotten a raw deal. At the same time, this is one of those “dangling penumbra” type decisions which always make me a bit queasy. This was, at least on paper, a First Amendment case. The officer’s First Amendment rights were not breached and even the majority opinion agreed with that. And yet they tossed out the decision because of the shadow it might cast on the First Amendment rights of others if they were, in fact, expressing their political views. That doesn’t make what the police department did honorable or just, but they are now going to be made to pay (well… actually the taxpayers will be made to pay) as if they had actually squelched dissent.

To a certain extent I suppose I can see Breyer’s point in saying that the department did it because they thought he was engaging in political speech. Under that finding one might argue that the department’s policy should be struck down. But it’s still unsettling. In the end, I’m not coming away from this one with any more clarity than I had when the case was first submitted. I wonder what sorts of future cases will wind up having this one cited as precedent?