More Scalia Fallout: Free Speech Case

What do you think about this? A mayor orders the demotion of a police officer who briefly attended a rally to pick-up a campaign sign for the mayor’s opponent. It turns out that the officer picked up the sign at his mother's insistence, to replace a campaign sign that had been taken from her front yard. The mayor acted on false belief that the officer opposed his election. The officer sued, claiming that his First Amendment rights were violated. The city said, no, he can’t assert a First Amendment right because he never stated his own view about the mayoral election (again, he was acting only for his mother). In oral argument, Justice Scalia appeared to side with the employer. While the case appears to be trivial, it is important because of the prominence of social media and its tendency to create as much misinformation as accurate information—not to mention the ease of impersonating someone on the Internet and creating havoc for them. When the Supreme Court granted review of the case, here is how the issue was framed: QUESTION PRESENTED: Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. Heffernan v. City of Paterson et al., 777 F.3d 147 (3d Cir. 2015). Justice Scalia's death appears to shift the case from a 5-4 win for the employer (or, defeat of speech rights) to a 4-4 impasse.