“HARD cases”, Oliver Wendell Holmes wrote in 1904, “make bad law”. But a ruling this week by the Supreme Court shows that cases featuring a tricky set of facts can, when the majority gets a little creative, make good law. In Heffernan v City of Paterson, New Jersey, the justices ruled 6-2 that a police officer who did a good deed for his ailing mother had a First Amendment right not to be demoted for appearing to engage in political speech when in fact he wasn’t expressing himself at all.
A decade ago, Jeffrey Heffernan, a detective in Paterson’s Police Department, entertained a request from his bedridden mother to pick her up a yard sign supporting Lawrence Spagnola, her preferred candidate for mayor. (She had already been displaying a Spagnola sign in her front yard, but someone had stolen it.) Several of Mr Heffernan’s colleagues saw him procuring the sign at a Spagnola campaign site, and word quickly spread through the police department. Mr Heffernan’s boss and the chief of police were both supporting the incumbent mayor, Jose Torres, and looked askance on Mr Heffernan’s apparent support for his opponent. The...Continue reading