The Supreme Court ended the argument portion of its term this week. After taking its last two week recess, the remainder of this term will be about attempting to issue opinions in the argued cases. The question remains how many of these cases will end up in 4-4 split or be rescheduled for reargument in 2017. Both this week’s one opinion and the last argument of the term had a strong First Amendment component.
The opinion came in the case of Heffernan v. City of Paterson. Heffernan is a police officer. During a mayoral election, a friend of his family was running against the incumbent mayor, and Heffernan’s mother supported this challenger. Heffernan’s mother asked him to pick up a campaign sign. Other police officers saw Heffernan picking up the sign. When the leadership in the police department heard about this, they demoted Heffernan on the assumption that he was supporting the challenger. As the case came to the Supreme Court, Heffernan’s claim was that the City improperly demoted him because of the erroneous belief that he was supporting the challenger.
In previous cases, the Supreme Court had held that it was improper for states and cities to require “political” loyalty from “non-political” employees as such retaliation would infringe on the employees’ First Amendment free speech rights. If Heffernan had actually supported the challenger (e.g., was getting the sign for his own yard), the city’s conduct might have been contrary to these decisions. The city, however, claimed that since Heffernan was not actually exercising his own First Amendment rights, the city did not violate those rights. The majority held that what controlled was the city’s intent. A city that — based on mistaken information — sanctioned employees for perceived speech would discourage the remaining employees from exercising their right to free speech.
The Supreme Court did leave the city with an out. Under prior decisions, while cities can’t require political loyalty from employees, they can have neutral rules that limit the ability of employees to engage in political speech, regardless of whom the employee supports. Given the posture in which this case came to the Supreme Court, the record did not reveal if the city had such a policy (which Heffernan’s perceived actions would have violated even if he was picking up a sign supporting the incumbent).
The argument involved former Virginia governor Bob McDonnell. The issues in his case do not directly involve the First Amendment. Instead, the issues are whether his conduct (using his office to aid in the promotion of a product made by a person who gave the McDonnell’s personal gifts) violate several anti-corruption statutes and the adequacy of the instruction. However, the First Amendment was a significant background issue in the argument (along with the scope of prosecutorial discretion). While it looks likely that the Supreme Court will, at least, find that the instructions given to the jury were inadequate to identify the specific acts that were improper, the more difficult issue is drawing a clear line that does not make it easy to charge every politician with a crime merely for acting in ways that aid that politician’s donors and supporters (turning the anti-corruption statutes into a political weapon used by the party in the White House against the party not in the White House).
Basically, the various statutes bar “quid pro quos” or “pay to play” in which there is an exchange of benefits to the politician for the decisions of the politician or the attempts of the politician to influence the decisions of others. Of course, it is not unusual for politicians to make calls on behalf of constituents and supporters — for example, to find out why an agency is delaying a decision on an application for veteran’s benefits. It’s a fine line between this normal constituent service and a politician using his power to coerce an agency decision. It’s another fine line between a politician using that power because it’s the right thing to do and a politician using that power because his “friend” is going to hire that politician’s child as an intern for the summer. The reality is that the line between legal and illegal depends largely on what the understanding of the parties — much of which is not expressly stated. In this day and age, it takes a rather stupid politician to expressly demand cash or favors in exchange for the exercise of influence and a rather stupid supporter to expressly demand favors in exchange for past or future support or gifts. When conversations are in code, the validity of charges becomes debatable.
I am not sure that the Supreme Court will be able to find clear rules. Sometimes, the law relies on juries to weed out those charges that represent prosecutorial excess. This might be one of those circumstances.
Both of these cases represent the fine line that the court has and continues to draw in the First Amendment. Public employees give up some First Amendment rights, but government can’t fire the janitor at the local school because that employee thinks the current school board is full of idiots. Candidates are free to solicit donations (and to accept some gifts from friends), but there is a limit on what they can do for their donors and friends. Drawing that line in individual cases is hard, and sometimes clarity is difficult to come by in an ambiguous world.