Supreme Court Dispatches

Does the First Amendment Protect What Looks Like Political Speech?

The Supreme Court is head-scratchy.

yard signs.
Does the First Amendment protect public employees from retaliation for conduct that merely looks like support of a disfavored political candidate?

Photo collage by Slate. Images by Alex Wong/Getty Images, Stan Honda/Getty Images, Don Emmert/Getty Images, and John Moore/Getty Images.

There are so many stellar moments in an argument Tuesday morning about whether the country’s 22 million public employees can be fired or demoted for their political speech. But perhaps the finest instant comes early in the morning when Chief Justice John Roberts probes whether we really need constitutional protections to remedy employment discrimination based on political association. Leaning in toward Mark Frost—who represents Jeffrey Heffernan, a former police officer demoted for ostensibly backing the wrong candidate in Paterson, New Jersey’s 2006 mayoral election—the chief justice asks, quite earnestly, whether Heffernan doesn’t have a legal remedy apart from this tenuous argument under the First Amendment. “Does he have civil service protections of any kind or, I don’t know, collective bargaining?” Anyone in the press corps who was present for last week’s collective bargaining juggernaut in Friedrichs v. California Teachers Association starts to giggle.

Heffernan absolutely has recourse to collective bargaining. At least until the Supreme Court comes back with its Friedrichs decision in June.

The problem in Heffernan isn’t just that the police officer was demoted from detective to beat cop after he was seen hefting around a yard sign for the rival mayoral candidate. The problem is that everyone agrees that he was mistakenly busted for favoring challenger Lawrence Spagnola over the incumbent Mayor Jose Torres. Heffernan was in fact only picking up the yard sign for his bedridden mother—whose prior sign had been stolen. So although he was ostensibly demoted for what looked like political activity, Heffernan was actually demoted for a mistake.

The law generally prohibits a government employer from retaliating against an employee for supporting a candidate. But the extra-meta question for the court is whether the First Amendment protects public employees from retaliation for conduct that merely looks like support of a disfavored political candidate, even though he is actually mainly just supporting his sick mom.

Heffernan sued the city, and a federal jury gave him $105,000 in damages, but the judge vacated the claim. Eventually a federal judge dismissed the First Amendment claims on the theory that Heffernan had never actually engaged in any protected speech or association, so no constitutional violation could have occurred. The 3rd U.S. Circuit Court of Appeals agreed. The Supreme Court is head-scratchy.

Frost, Heffernan’s lawyer, gets off to a bumpy start this morning when Justice Anthony Kennedy asks him almost immediately how he would “define the right at issue in this case.” Frost tries to explain that there is a right to not be demoted for perceived political associations, but Roberts cuts him short: “Well, but the First Amendment talks about abridging freedom of speech, and I thought the case came to us on the proposition that he wasn’t engaging in speech at all. That he was not engaging in association, he was not engaging in trying to convey a message, he was just picking up a sign for his mother.” 

Justice Antonin Scalia tags in: “He was not expressing any First Amendment view whatever. I mean, he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.”

This is when Roberts asks whether Heffernan has any non-constitutional remedies, and Frost begins to answer in alarmingly vague terms about the New Jersey state Civil Rights Act, which Scalia weaponizes into a great big stick of mockery so brutal that Justice Ruth Bader Ginsburg is forced to ask Frost to simply read the text of the New Jersey law. Frost tries to say that although Heffernan actually “was not engaged in any political activity, [it] should make no difference with respect to the motivation” of those who demoted him, but at least three justices plainly disagree.

Ginger D. Anders, assistant to the U.S. solicitor general, has 10 minutes to explain why the Justice Department favors Heffernan’s reading of this case over that proffered by the city of Paterson.

Scalia is unwilling to follow her. “Up to now,” he says, “whenever anybody’s fired” or not promoted, “it hurts, and you want to bring a lawsuit sometimes. Up to now, those 
lawsuits would have to show I was asserting a First 
Amendment right, and it’s for that reason that I was not 
promoted. But what you’re saying is you don’t have to show that at all. All you have to assert is that the reason I was not promoted was that the employer believed that I was thus and so or not thus and so.” 

Anders explains that if an employer acts against an employee based on a mistaken perception of his beliefs, that employer should be liable. He “shouldn’t get a free pass simply because it’s ill-motivated and wrong.”

Supreme Court veteran Tom Goldstein steps up to defend Paterson and its bevvy of confused political retaliators. He explains, in response to Kennedy’s query about what constitutional right is being asserted here, that Heffernan “doesn’t
have a First Amendment right, because he’s not engaging in First Amendment–protected activity.” Justice Elena Kagan rejects this flatly, explaining that the First Amendment exists to prevent the government from acting for impermissible purposes, whether or not it gets its facts wrong.

Goldstein replies, “And we just disagree. It’s called an individual right, not a government wrong.”

Ginsburg pops in for a quickie: “Mr. Goldstein, let’s take a Title VII case, and the employer fires a woman because he thinks she’s pregnant. She brings a sex discrimination case and alleges, ‘Well, I wasn’t pregnant. I just was gaining weight.’ So she has no sex discrimination claim, because she wasn’t pregnant?”

Kennedy is still fighting himself to a draw over the nature of the First Amendment right at issue here: “In—other words, the citizens of the United States have no right … have no interest in making sure the government doesn’t evaluate everything they do from a political standpoint?” he asks.

Goldstein explains that “the government thinks a lot of things about me, OK? Some of them are not very nice I imagine, but … there is not a constitutional right to have the government not think something about you.” 

Kennedy is becoming agitated: “You want this court to hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold?”

Kagan goes for it:

Part of the reason we have these protections is because we worry the government is doing things for impermissible reasons; that the government wants to create a world of speech in which everybody agrees with it and nobody opposes it. And that’s a fundamental tenet of what the First Amendment and all our cases are about. And you’re saying, oh, no, the government’s motive doesn’t really matter as long as you can’t point to somebody who is holding up a sign?

Toward the end of a most meta morning, meandering through hypotheticals about Ruritanians escaping on boats and the science fiction preferences of couch potatoes, Goldstein replies to another question from a dogged Kagan by intoning that “the Constitution doesn’t fix everything!”

Wait … what? For a brief instant the very Earth moves.

Scalia cannot resist: “Do you really believe, Mr. Goldstein, that the Constitution does not solve all problems? You made a statement to that effect. You really believe that? It doesn’t solve every problem?” Anxious laughter in the gallery as lawyers ponder whether this is a political position for which they may someday be demoted.

Goldstein offers up a long and thoughtful answer and finishes with a perfectly apt flourish: “There is a real concern that is rooted in a history of the United States involving political
 patronage. The court has never tried to extinguish politics from local government. And if you try to do that in New Jersey, we are going to be here a 

Disclosure: I am on the Board of Trustees of the Thomas Jefferson Center for the Protection of Free Expression, which filed a brief on behalf of Heffernan in this case.