Tuesday, January 19, 2016
The Court heard oral arguments in Heffernan v. City of Paterson, NJ today, a situation presenting a question that Justice Alito at one point described as "like a law school hypothetical." Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.
At the heart of the oral argument is a large question about the purpose (and one might say the direction) of the First Amendment. On one view - - - that of the City of Paterson as represented by Tom Goldstein - - - the First Amendment requires that a person be exercising the right of free association (or speech): "It's called an individual right, not a government wrong." On the other view - - - that of Jeffrey Heffernan represented by Mark Frost - - - the First Amendment restrains the government from acting to infringe First Amendment rights, even if it does so in error. This was perhaps best expressed by Justice Ginsburg:
And I thought - - - and unlike Justice Scalia - - - that the thrust of the First Amendment is operating on government. It says government, thou shalt not - - - thou shalt not act on the basis of someone's expression, speech or belief.
Justice Ginsburg broached the analogy to Title VII, which arguably allows perceived status to support a claim, was quickly distinguished by Justice Scalia as being a statute that focuses on the employer's discrimination rather than the employee, unlike the First Amendment. There was no reference to the text of the First Amendment which of course begins "Congress shall make no law . . ." which could be read as emphasizing the restriction on government.
Justice Kennedy asked the first question of the argument to Mark Frost as he was just finishing his opening by requesting an articulation of the right: "How would you define the right that your client wishes this Court to vindicate?" But although some other Justices seemed to believe there was no actual right, Justice Kennedy later seemed more equivocal:
JUSTICE KENNEDY: 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.
MR. GOLDSTEIN: Justice Kennedy, I think that that is not a First Amendment violation.
The Solicitor General's views on behalf of the United States, represented by Ginger Anders, supported the employee. Ms. Anders articulated the right as "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs" and later as the "right not to be subject to a test of political affiliation."
Chief Justice Roberts at several points expressed concerns about a possible "flood of meritless lawsuits" if the employee does not have to show he was actually exercising a protected right.
The Justices seemed divided; Justice Kennedy may (again) be the "swing" vote on this one.