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takyon [soylentnews.org] writes:

An off-duty New Jersey law enforcement officer picked up a political sign to replace one stolen from the yard of his elderly mother. Now, retaliation following that simple act has led to a case being heard by the U.S. Supreme Court [npr.org]:

Heffernan promised he would get the sign, and while he was off-duty, he went to the challenger's campaign office; there the police officer was seen holding the sign and chatting with campaign workers. When he got back home, he says, "my phone rang, and I was told that I was ... being demoted and I was gonna go on a walking squad for 12 hours a day."

Heffernan says he tried in vain to explain that he was just picking up the sign for his bedridden mother, and that he was not active in the campaign, nor could he even vote in Paterson since he didn't live there. "They said to me that 'the mayor wants you out of the office; the mayor calls the shots, and you're out,' " he says. The police chief later admitted he simply assumed that since Heffernan was seen holding the sign, he supported the candidate running against the mayor.

For Heffernan, who eventually retired, the demotion was a huge blow. He made more money as a detective, he says, and working in the chief's office meant fewer hours, and weekends and holidays off — not to mention the pension consequences of being busted down to walking patrol.

He sued, contending his First Amendment rights were violated, and a jury awarded him a total of $105,000 in compensatory and punitive damages. But the trial judge subsequently recused himself, and the verdict was set aside. On a second go-round, the newly assigned judge threw the case out, declaring that since Heffernan was not in fact campaigning for the mayor's opponent, he was not exercising his right of free speech and association. Therefore, no constitutional right had been violated. A federal appeals court agreed, and Heffernan appealed to the Supreme Court, where his case is to be argued on Tuesday.

Heffernan's lawyer, Mark Frost, will argue, "You have the right to be involved or not be involved. That's part of your First Amendment right, and the fact that here they were mistaken as to what he was actually doing, doesn't matter." In evaluating retaliation cases, Frost says, courts should look at motive, and here the motive was to punish Heffernan's perceived speech.

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