not to be demoted on patronage grounds does not matter if you are affiliated with a specific party or that you are not affiliated it does not matter if you are mistakenly perceived by your employer or supervisor that you're engaged in political association to be protected by the first amendment how would you define the right at issue in this case that by virtue of being a public employee he has the right not to engage in political association well that's just a restatement of a rod i would would would it be fair to the proposition that you are putting before the court to say that you're asserting the right to be free from government inquiry into an oversight of your views would that be a fair post a comment i would be a fair statement just this kind because a look do we to it's sounds to me from the way you begin your go that we take this case on the assumption that if he had picked up the sign that if he had been supporting the candidate for the chief of police who was challenging the incumbent if he had been engaged in activity that would be protected he could not have been demoted if you want to take the case on that proposition do we have to accept that proposition for you to prevail in this case now we do not have to accept that proposition proposition it is just clearly that as a public employee he has a right to either associate or non associate and he doesn't have to commit an affirmative act and support in this case of the american upon it which was chief spike all well but that the first amendment talks about a bridging freedom of speech and i thought the case came to us on the proposition that he was 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 and if that's the basis on which the case comes to us i'm not sure how he can say his freedom of speech has been abridged in this case mr chief justice has comes to us with respect to association with respect to speech speech is governed by a different doctrine an in picking up the signs for her but he was not expressing any political view he was not associating with a political party what's case of ours vindicate the right that  justice kennedy described to you and which he readily agreed with what case of ours vindicates that would stand for that proposition el mirage el rod says you have a first amendment right to favor a political party or not favor a political party and you cannot be fired for doing so that's not what happened here but he was not favoring a political exactly he was not expressing any first amendment view whatever i mean it  was fired for the wrong reason but there's no constitutional right not to be fired for the wrong reason if he was fired because his him is his government employer thought he had committed a felony and he hadn't he might he might have a cause of action under some sky chewed but there's no constitutional right not to be fired for the wrong reason and that's what happened here there's a constitutional right justice scalia to be able to be free from patronage decisions and to be discharged or demoted on patronage grounds and in l ron we say that we never said that we l rod and brandy are our case decided under the first amendment the first amendment guarantees the right to freedom of speech and freedom of association your client was neither speaking nor associate so how could he possibly have a cause of action under the first amendment he doesn't need to speak and he doesn't need to take a position the rutan plaintiffs they didn't take a position with respect to promotion or transfers they took the fact of the matter is that since they were not affiliated with the republican party or supporting the republican reporting or endorsed by the republican party none of those individuals would have been promoted or transferred they didn't take any affirmative acts and i don't understand i don't understand your answer what expressive activity did he engage in and he wasn't he was not allegedly demoted for failing to support the mayor he was allegedly demoted for seemingly supporting the mayor's opponent  and warders that this court looked at the motive of the employer be a mode of government if the government perceives that you are  engaging in a political activity and the motive is to suppress one's beliefs and associations or non associations then you look at it through government analysis and that's their basis of there are facts that you are evaluating here they evaluated the facts that he was engaged and campaigning officer heffernan went to a political gathering he went and picked up a sign what was misperceive by his employer was the fact of his intact he said that i'm not intending to support spagna all but he is doing all those incidents that are core first amendment activities well let me just to clarify what i have i thought the case was presented let's say the employer comes into smith and says you know smith i saw you getting a political sign and you're and you're you're fired and smith says it wasn't me i was off you know in a different town then in other words it's a pure mistake of fact your answers it seems to me you're trying to get advantage of the fact that there you could perhaps have argued this was expressive activity so he was at a beating a political event he was getting a sign but your theory i thought didn't depend on that at all it was simply a mistake of fact and then now can the person who wasn't even there can he bring a first amendment challenge to his dismissal yes mr chief justice and the point that i was making and again but it's still not clear to me what is the right that he's the thir a back up but why do you think why they would is of him local government say that all our employees must be neutral in campaigns and must not take part in campaign well they can vote but they can't take part in campaigns like the acts there is no provision here can the government insist on neutrality i think the government can have a policy after balancing the interests between that of the employer  and that an issue in this case is there any allegation that it was such a policy of neutrality no in truly could engage in political activity again justice ginsburg there was no such policy in this case involving sorry i thought it was an unwritten policy that there was a policy that chief with a sad that exist it with respect to members of his staff only however with respect to the policy there is no testimony regarding about policy in other words the people that worked in the chief's office the reform individuals who were officers none of them ever heard of the policy also the policy was never raised allowing any of the motions for summary judgment or the motion before the third circuit twice so we believe that that motion is way but to answer your question your honor is the fact that no one knew of this policy said so he could say you had a policy and make reference to it but it's just not supported by any evidence in this case is there a remedy  for your client apart from this action under the first amendment does he have civil service protections of any kind or or you know collective bargaining now let's just say what would happen if the boss comes in and says you know for the you didn't turn off the lights last night you're fired can he is there a way for him to say you know i was on leave yesterday it wasn't me well that's out constitutional violation for going on that my point is that maybe th shouldn't be a constitutional violation if there are adequate remedies to address what may or may not be a first amendment issue mr chief justice there are there were no other remedies and there is a state of new jersey has a state so all right sock which hundred three just because there is as such a right doesn't mean that you can diminish the first amendment and give up your first amendment rights so clearly we proceed it with the fact that there was a violation of the first of mamet's just because it was created by the state there is no what is it for now the jersey act that's a strange act it protects state employment only against first amendment violations now it rights officer however does it mean you have to violate the federal constitution to get relief under new jersey will you have to yeah i did nine hundred eighty three says what is what is new jersey law say there but that doesn't give you an exclusive right you can't the minish is first a member right now the question is not whether the new jersey law somehow i brigade's first amendment rights the question is whether he has a  say there's no first amendment right what civil right has he was violated if what mr goldstein says is the the civil is a state of the law attempting to violate civil rights what right if we say there isn't a right not to associate well if we say it doesn't exist if you lose this case if what doesn't exist just a sort of mire just that the right you're claiming he has every right to bring this claim in federal court and he may have water substantive rights under new jersey law i would be somewhat surprised if that were not the case civil rights to which this the new jersey statue refers may refer to rights under the new jersey constitution or other new jersey laws there are new jersey laws but just because again it doesn't abrogate your first amendment rights so the fact just didn't matter whether or not he engaged there could have been a violation of any type of new jersey statute the ledge in this case it was never brought up by respondents in this case turned during any of the arguments on any of the briefs and therefore with respect to this matter so our position that he has every right to maintain this litigation with respect to violation of his first amendment right and here is alleging that he has the right not to associate and that right really stems from the fact that we have that this court has considered and l ron and his progeny for the more the third circuit makes its mistake and requiring decision in this case it's actually lacks common sense i mean if you take a hypothetical with two police officers going to pick up a sign and when they go to pick up the sign they're out  should make no difference the outcome is still the same in the sense that they're both engaging not activity the only difference is that the employer perceived mr halford in gauging  protected activity they went to stifle and squash his rights of association or non association their motive was to suppress that and clearly that has a chilling effect on other employees i mean it's just very clear from the testimony in this case and if you go to the appendix page fifty what is very telling about this case is the fact that when he went to pick up the sign there was a councilman there who was the chairperson of the election and he says the heffernan says or you'd better be careful maybe you should come back later while we're we're hanging up these signs and that clearly shows that showing a fact that the would have not only in this police department or in the city of paterson but other employees in different jurisdictions in different areas would have the same issues you would have to think twice before you did something if you went to a political gathering  her campaign or you want to hear a speaker speak and you picked up a pamphlet and put it on your desk the if your employer saw that and they didn't like that candidate and they took action against cher you would see that that is action based on a motive to suppress one's rights all of those things would be true if the mirror gave a speech saying i am going to fire anybody who's not a republican all those things would be true to chill people who would would there be a cause of action would anybody have a cause of action because of that speech because of the speech of his i was to speech he hasn't fired anybody he's just said i'm going to fire anybody who's not a republican or anybody who's not a republican will not get promoted just displaced anybody have a cause of action for them there would be no claim because no action was taken so so part you have the perception that s what counts is whether action was taken for a particular reason not whether you chilled whether you chilled people what you're arguing to us is this is unconstitutional because it chills other people but that doesn't that just doesn't carry water justice clay it carries water is the fact that in this instance however no and was denoted on the employer's mistaken perception that he was engaged in activity and you don't need to engage in  league you say that he was demoted because he gave the appearance that i think the first amendment right yes because they perceived it that he was exercising his rights and the fact that he actually was not engaged in any political activity should make no difference with respect to the motivation outcome what took place with mr heffernan the issue was clearly that it was ill well it was because it was against the a ministration and they took that action to suppress that belief and the chills other mr chief justice may i reserve the remaining time if you make the questions like  mr chief justice and may please the court i'd like to start with justice kennedy's question about how we define but right here we think the petitioner has a first amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs he was directly injured more than a best case for that we think that the there are two aspects of this this court's case law i think that support that and then i'd like to get back to your concern about probing of beliefs but we think that the way that the court to find the right issue in brandy in routine and again in o'hare demonstrates that an employee doesn't have to affirmatively exercise his first amendment rights first so in those courts case in those cases the court said that the plaintiffs can show a constitutional violation of the first amendment simply by showing that the ten and then in o'hare which is the government controversy in all of those cases no first amendment right was being exercised right no matter is that your point well i think actually in the roots and case there were there were three plaintiffs and it wasn't clear had adverse action taken against them because they had lacked the support of the correct republican party officials that's all the court says about their allegations there are any number of reasons they could have lacked that support they could have affirmatively refused obviously  the support which would be an ex says a first amendment rights but on the other hand they may simply have not had the time to seek the right support or they may have been ignorant of the requirement in the first place those wouldn't have involved an affirmative exercise you know i thought in all of these cases up to now whenever anybody is fired demoted or even not promoted it hurts when you want to bring a lawsuit subtypes 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 or you have to assert is that the reason i was not promoted was that the  the employer believed that i was thus and so are not the us and so you don't have to show any assertion of a first amendment right you just show that the the employer liked republicans and that's enough well i think in the employment context there's no question that the plaintiff was directly injured by the unconstitutional condition but to respond directly to your point you know i think i don't think there's a serious concern here that there will be a flood of marilyn's lawsuits or anything like that and that's that's primarily for two reasons i take your point that that this will expand the universe of litigation somewhat but we already know in the statutory context that courts have recognized saying it's based on a mistaken perception and and in that context we haven't seen any flood of marilyn's lawsuits and with respect to iraq claims pacifically i think it's always been fairly easy for plaintiffs to allege that particular filiation believe i was in the republican party and i do know we haven't seen a flood of lawsuits in that context well we haven't in the context you know when you were just referring to well we looked at this it doesn't come up very much and when it does it looks to us that courts have been able to use the standard technique of looking at that you reported decisions rather than you haven't done a survey to see how many complaints have been filed in this type of case no but when you look to reported decisions what you see is that courts are able to use twamley in a ball and summary judgment in order to get rid of claims where the allegations are plausible or there's no evidence but i also think if the  plaintiffs are going to have to allege that that they actually hold the beliefs in question this is going to reason exactly the concern that justice kennedy mentioned earlier about oversight of police probing into police so this will affect all our right cases so every time in  brought the defendant will have the incentive to say are you saying there's a right to be secure from government oversight of your beliefs well i think the court recognized in o'hare that that is a particular concern in the affiliation cont that we don't want courts to have to to examine the nature and extent of the plaintiff's beliefs or association that's a good idea maybe and maybe maybe it should be in the you know some civil service act but where do you find it in the first amendment you turn around you say the government cannot act for an unconstitutional purpose but we usually ask how is the defendant hurt what is his right and it's still a little bit unclear to me we think the defendant has been heard in the constitutional sense because the way that the court has defined the right in question i think the court was suggesting that we shouldn't have first amendment tests if we can help it that lead the court to have to probe into plaintiffs beliefs and that is exactly what will happen i don't know why the right isn't the right to be free from arbitrary employment action based on a mistake that's his objection here you made a mistake you thought i was be you know being politically active i wasn't i mean isn't is there such a right under new jersey law you can't be fired for an arbitrary reason or you can't be fired for a mistake reason i think with respect to some job actions there there would be such a right of new jersey law i'm not sure whether it would apply here but i think the granting of plaintiff's complaint here is not that he was fired for inaccurate reason it's that he was he was demoted because for an improper purpose that the perception that he was engaging in protected first amendment activity and you brought up in your brief i think that that the employer might have had a heart attack type policy i think he said we undisputed facts some assertions that this was in fact a neutrality policy now you definitely have a dispute about that coming back from the other side petitioner says and nobody knew about that policy so we think that is one thing that potentially the lower courts would have to look at  preserved and resolve the dispute in that sense but i do want to get back to another concern that i think responders position raises you know we do think that response that petitioner has his own first amendment right here that was violated we do think that when an employer acts against an employee based on him or station perception of his beliefs that creates exactly the same chilling effect with which the all rod cases are concerned so the other employees will know that the employer expects political orthodoxy  and will be chilled in their in their own association as a result i think there's another concern here that deepens the chilling effect and that is that the logical response position applies not only in cases of honest mistake it also applies in cases in which the employer  to exploit a loophole essentially you can imagine a situation in which the employer knows of some people having gauged in political affiliation the employer wants to send a message and it does that by acting against employee things didn't actually engage in that association and  think that is one of the dangers of respondents rule here that it will create a loophole and so what we're saying essentially is that this is just a narrow corollary to the right that the court has already recognized when the employer acts with the exact same intent that  justice and may it please the court the dock trial fight in the briefing is over whether the plaintiff in a case like this has to assert a constitutional right and i think the questions so far have indicated an understanding that the plaintiff would have to in the real question then is is there actually a constitutional right here one that we might define in other terms including the one that justice kennedy had an a five as the right not to have your political views inquired in and this is actually discussed in the court's opinion in o'hare into scribing l rod and brantley and so i want to start there because we have to recognize that this right is never been recognized in any other political associations case whatsoever and there's no logical reason why it would occur specifically in the public employment context which hypothetical but i think you actually have something slightly different in mind because you identified as the second employee one who is politically neutral and the court has said in cases like enron brantley that the decision to remain neutral that is i see this candidate i see that candidate i'm going to just not choose between them because i'd you know for any individual reason that that's protected that's a political choice and in your precise hypothetical both of those employees would have a claim this case is different and critically different the other side has quite consciously throughout the case made only two arguments the first is that he was a supporter of spagna and he's given up on that and the second is that he had no association whatsoever he didn't have any more association than i did he was politically oblivious ginsburg if you were to ask me that question which is what difference what sense does it make the sense that it makes as one is exercising a constitutional right and one doesn't so just to make sure i understand what you're saying suppose there is somebody who comes into office  and it's a democrat and he says i want as many democrats as possible in my office no matter what jobs they're doing now what you're saying is he can't fight the motor fire republicans he can't remove or fire people who have other political views they're democrat or republican but what he can do is he can get rid of anybody who's just politically apathetic is that you were you if that was actually the policy then technically the answer to your question is yes under the first amendment and i'd like to explain why i know it sounds anomalous the reason is that those people there is nothing in the first amendment that says that the government can't encourage people to be politically active and that is entirely the point of l ron in for you but you encourage the person to be politically active and then fire him or her because their political politically active the wrong way no sir i suppose the employee says you know i don't like the evening news i thought i like science fiction i don't and i don't know if i'm a republican or democrat i don't care for and that he cannot be fired what is his right my point justice kennedy is that he may have a state law right he does have a collective bargaining agreement right but he doesn't have a first amendment right because he's not engaging in first amendment protected activity i do believe the government that is refusing to the the government has a right to compel him to declare one way or the other just but that brings us back to your question and that is does he have a right not to have an inquiry into his political views and that is of course not a right that's been recognized in any other political association context when the court discussed it in our heritage in a very specific and really important way and that is it looked at all cases like al right in brandy which are general policies and what the court has said there is that when it's a sweeping policy it's not necessary into quire to inquire into individual political beliefs and what those cases ought to be understood as applications of first amendment over breath doctrine it is commonplace in first amendment law that if you have a general rule and the general rule will be unconstitutional as applied to some people and the other people involved were asserting first amendment rights the policy can be fa those cases is a different one that the idea has to do with why the government acted and once we say that the government acted for an impermissible purpose which is let's say in my hypothetical get it's many democrats as possible into the government once we say that's an impermissible purpose it matters not at all whether the person is a republican an independent or somebody who's never thought about politics in this life because the government is acting in a way that's wrong irrespective of that we just disagree it's called an individual right not a government wrong the individual has to be engaging in whether it's expression or association i actually think it's not contested justice kagan any more on the free speech side that with cases like waters an employee cannot bring a first amendment free speech claim that says you know i didn't actually engage in speech but my employer thought i did there is no first amendment right not to have this individual  inquiry and justice kennedy remember that our position in particular so does that mean that the government can compel speech of a person if the person really just doesn't care one way or the other no it's a very important stinks and so let me give a hypothetical that ought to be hard for us and that is afternoon is asked by the chief of police you know do you support the mayor he's completely agnostic and he refuses to support the mayor and he's transferred the decision not to support it or to be subjected to your hypothetical is a political choice this case was framed by the plaintiff in a very specific way on purpose and that is he disclaimed any such influence any such pressure any such choice that he was having to make now the important piece about on this question of inquiry is that our position only applies to a party that doesn't claim anything other than being politically apathetic so justice kennedy there is no inquiry justice kagan is quite right that if you have somebody who's an independent or a democrat a republican the first amendment doesn't care but if the plaintiff is going to pursue a was pregnant not just because we're the courts are divided the position of the e e o c is that she would have a claim i just think it's a good point for us that congress can write laws that recognize such an regarded as claims those statutes focus on the employer the employer can not discriminate on the basis of sex and that employer was doing that the first amendment does not focus on the government it focuses on the citizen the citizen has a right to free speech and free association so it's a difference between the two cases it wouldn't surprise you that i agree justice scalia justice kagan if we could just take this outside the public employment context and the reason i want to do that is that we ought to be able to agree that the first amendment rights aren't greater association rights that the court has pointed out that there's a greater federalism interest in managing the public employment workforce and also that this is an unconstitutional conditions case but just imagine the following simple  that relate just to this case imagine that the chief of police with the same motivation went up to half and in as he went to pick up the sign grabbed the sign and tore it up or imagine that heffernan was trying to stop from entering a parade in favor of spag no luck but what he was actually trying to do was just cross the street or he went to the building where it is that's bagnall had the his headquarters and the chief of police stopped him from going in but he was actually going to his lawyers office those are all the exact same motivation and there i don't think there's any way the court would recognize such a claim it's a very sympathetic claim ok i get the fact that we are very concerned that public employees not be transferred or demoted but we have other laws and other regimes that are that fill that gap what is it what is the other law here what relief does he have yes two forms of relief the for first is the collective bargaining agreement i will tell you that it is not in the record but it is judicially noticeable it is a public document it's available on the government websites of the state of new jersey broader civil rights under new jersey law and this just makes sense the court in cases and you agree that the petitioner is entitled to relief under that provision of the collective bargaining agreement if if he his allegations of the facts are correct your hypothetical about stopping the person from crossing the street or they think entering the parade with the individual is has no right to insist that the government doesn't make a first amendment judgement about his activities that's correct justice kennedy another words the the the individual in in their lives in the united states have no right of no have no injury have no interest in making sure the government doesn't evaluate everything they do from a political standpoint i think they have an interest justice kennedy i'm not saying that we are concerned that people be able to have conscience that they be able to make their own personal private judgments but what we're talking about here in a context in which there's a real concern that i would like to talk about about whether it will interfere with the management of local government that it's an affirmative constitutional right it's a violation of the first amendment now the reason you ought to be concerned justice kennedy is there's another side of the coin take it from the perspective of the supervisor if this right is recognized which is to say the plaintiffs need not have engaged in any association then the supervisor expression of political views may well be chilled because he has to worry that any employee can say look i was regarded as politically active if i could just give you this case again and that is take the sign out of it the plaintiff says he was well known as  suppose friend and supporter ok imagine that that's discussed in the chief of police's office but the chief of police thinks that that heffernan really should be transferred ok the chief if the petitioner is right here really has to worry because if it's discussed then there's every reason that heffer can and heffernan can just bring a lawsuit saying look i wasn't actually involved in the campaign but you did it because he was my friend and that is a very significant consequence for individual rights now if we didn't have other protections that get to the concern about conscience i could see the case and we know that you can't move let's assume in this particular that position you can't be fired because you're a republican or democrat and the bench but they that's that's what they do but that the person did not engage in the neck to body he still he still is in the position of the government ascribing to him a political belief that he does not have justice kennedy that's right the government thinks a lot of things about me ok some of them are not very nice i imagine but and some are about my politics and that sort of thing but there is not a constitutional right to have the government not think something about you just remember as well here they thought and they acted you know ok and were to act justice kennedy you know not just something ok it's the government is taking action against the person because the government thinks that that person is exercising first amendment right expression speech of the only well essentially all of the rights individual rights in the constitution other than the slanty slavery provision require state action they all talk about what the government can't do but with the government so he had the government act in no question they demoted the person  after the petitioners reply brief you describe this in first amendment terms that if this was a speech case which it used to be rather than an association case he would lose there it is well settled in this court's precedents that the threshold inquiry under did the individual engage in the constitutionally protected activity this actually is an issue i should say in the court's other association case public employment association case this sitting where there is a significant issue of is there a different rule that applies when we're talking about a policy justice kennedy that applies broadly to a lot of employees versus an individual one off employment action which is what is that issue here we think that's a critically important distinction when you look at this is kind of the pickering standard case where the first thing that has to happen is that the individual has to assert at least that they engaged in the constitutionally protected activity if you have an l rod and ranty type case which is what's discussed and that is part of o'hare it's an entirely different kettle of fish because there you do have a general policy you could see people being chilled you could see the government taking a broad view of its employees i guess i'm not sure how that works it just seems to break down very easily if you can't at the broad rule that says that you can fire everybody but democrats and you are saying that you are going to allow somebody to come in and fire people wanted time and justice kagan that's of course not what i'm saying what i'm saying is that under first amendment overbred the doctrine when you have a general policy in this is what we think happened in rotten brandy the fact that you don't you do not enquire into the individual person's political views because the policy is facially unconstitutional but it has never been the case in any context on the other side is that at every opportunity in the world we cannot find any first amendment case that says you know what you don't have to engage in constitutionally protected activity so long as the government thinks you did and it's really a problem if that's the rule because it is the threshold thing that stops plaintiffs with meritless cases from getting out of the box in all of these cases if the plaintiff no longer has to say i engaged you are saying and i think you said this straight out you're saying i can come into an office on the democrat i can i can i can identify every person without the well known political view every couch potato out there just fire one after another after another after another and replace them with democrats change the entire character of the office do it for a reason that i prefer one political view to any other and that that would not be a violation of the first amendment that well two things first i think it is practically impossible because you would have to somehow magically pluck out the people who are politically apathetic from those that are politically neutral and i just don't think you can do it but the second is that's right the constitution doesn't fix everything what 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 justice kennedy i think that that is not a first amendment violation i don't think the other side thinks that's a first amendment violation remember there's the materiality requirement see i had always thought that the first amendment running through all our cases that extremely strong strand that part of the reason we have these protections is because we were that government is doing things for him permissible reasons that the government wants to create a world of speech in which everybody agrees with it and nobody opposes 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 i sign just a and i think you are right it is an important thread of this court's decisions and the court has said that it is a necessary but not sufficient condition waters makes very clear which is a first amendment public employee case the constitutionally protected activity every one of the guards said he says the same thing you have to have an individual use approach the same thing from a different perspective i suppose can congress pass a law or legislature pass a law that attempts to abridge the freedom of speech is that a violation of the first amendment it's an attempt what would  doubt that they'll pass such a law but i just substitute anyone you want for that they they pass it and by the way the six people who hold that philosophy or leave on a boat before the effective date but  or what's more likely they bring a declaratory judgment action and the law and never takes effect and therefore it had no impact and that happens every day of the week i'm just wondering if  a law which is an attempt right on the books as blatant as your work or that violates the first amendment that's a serious question i am not taking a point of view i want to know what you think justice prior the reason that we allow the below i just want to know a yes or no does it in your opinion doesn't it that we cannot develop a clear attempt to violate the first amendment in a statute that has general application does it violate the first amendment does it abridges law freedom of speech if it's only going to be an attempt and it's not going to succeed no the statute distraught you describe is unconstitutional because it isn't constitutes right there all kinds of times and it will have a lot of bad effects it will have all kinds of chilling affects all over the place if it's defined just as prior is not going to succeed if the statute doesn't say no no by chance it happens not to succeed although the justice crier if the person in my eyes my hypothetical i know it is i'm just i'm just trying to keep up with it in the one that you just described just this prior if it is the case that time fails or just finished it just so i really do want to help if congress at the same time passed a law that said no federal funds shall be used to implement the ban on talking about the political views of her tenure that is to say the law won't go into effect  try but the money was taken away from us it's not unconstitutional or or you could say that the law is passed by congress but vetoed by the president is there a violation of the constitution there would not be but in my  actually goes into effect i am off on a tangent because there is no injury in the situation with a lot of some go into effect but coming back to what justice prior i believe is attempting to say yeah i don't know mr goldstein that i understand either and i think justice kagan asked you this why does it matter and we don't care whether someone is a republican or not in the reut in front in those cases and you say it's only because it's a policy the intent of the government is to say i'm not going to promote anybody who is not a democrat or not a republican more than a policy it will actually have adverse consequences for someone to just i say that so they found a long and not promoted people are right so you have to have someone come in and say i'm not a democrat just i'm not a republican or you need someone no tell you what they are no common sense does not leave the court house and that is if i have a policy that says i will not hire democrats i think a court would understand that there are going to be democrats who would apply for jobs and that there doesn't need to be an inquiry but so then why isn't it simple to say not hiring you or i'm demoting you because you politically associate with and doesn't that shield the person from even walking by a campaign doesn't it chill others who do want to associate marginally kno i'm assuming that there's no policy in place there's no jumping to per prevent this otherwise like the hatch act i think it's a really important point on the question of chilling because now rod and brandy and the rules that also and o'hare which an a one off case do say that you can't do this for political purposes if the person is actually exercising a constitutional right so that we all agree that if the plaintiff here was a supporter of spag no or even if the mayor or had decided to remain politically neutral this is a bizarre case that comes due on the assumption that he is completely politically apathetic it is bizarre and do you really believe mr goldstein that the constitution does not solve all of what individuals political views are but i'm saying that that happens your honour's in all kinds of cases whether it's redistricting whether it's campaign finance there's lots that we do to ascribe political views to people in this country and adopting that  doctrine is going to have pretty widespread consequences when it's not necessary i do think that it should be common ground that there are multiple layers of protections for these employees the basic rule and justice kennedy remember under the basic rule the pla always come in and said i'm a democrat right the arad grantee rule when it's involved one off cases the opinion and o'hare describes the political views of the tow truck company there and it has never been regarded as a first amendment problem when you don't actually exercise any first amendment right right but that is a first amendment problem for the reason that lots of other people will add her speech chill and normally in the law there is a doctrine where the person who does the bad thing makes a mistake he's held anyway that's true of transferred intent you shoot a but you meant to shoot b it's true of attempts generally it's not where the constitution and why not that is to say i would think that a statute that has a chilling effect on the speech of millions of people but is directly aimed at a b and c if because of some fluke a b and c are not the injured none the less everybody else is and it would still violate the first amendment under that i think is what you have here which is why i raised my point great justice prior and if you would just contrast in your own mind the statute that affects millions of people versus the beat cop who talks to one person in terms of its chilling effect because first amendment over breath doctrine was born because of your hypothetical the concern that a broad policy or statute will have widespread effects that is not anything like this we have got you know of any case in which we have relied on a chilling effect where what was it issue was a one off like this one as opposed to a a general policy which had a chilling effect i don't know of any case to the contrary i can tell you that in case in both waters and are said he versus a bios the court said look we recognize the rule that's being proposed to us so in waters that was the idea that the public the employers views wouldn't matter it would just be whether the speech was protected in car said it was the question of whether it was the public employer speech and the public employees argument in both those cases is that look these rules are going to chill speech because they are uncertain boundaries we need to have wide ranging expression if i have to bring my case they'll be inquiries into my speech views or whatever in the court said look we just have to balance things here there is a real concern that is rooted in the history of the united states involving political patronage we not 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 lot and i mean washington i mean the question in this case seems to me to be highly artificial it's the sort it's like a law school i got it all how often will it be the case that an employee will be unable to allege any expression or any association that is protected by the the first amendment it seems to me quite rare and it may be that this case comes to us the way it does because the plaintiff was dealing with two things one was the first amendment in the other where one was the issue that's before the question of his motivation and the other was this alleged policy prohibiting any kind of political activity even in the person who's just apathetic is there not a first amendment right to be say i don't i don't like politics on anything to do with politics i'm not going to register i'm not going to vote so that justice alito the third circuit has a rule discussed in the proof brief in opposition adopted in a case called galli that says you do have the right to be politically apathetic the reason the case is so bizarre is that the other side for its own reasons decided not to assert that right now i would say that it does nonetheless matter because they're going to be other kinds of cases where you have a public employee that just is not in is serving any rights and all and is not involved  environmentalism or gun rights or whatever and the public employer if it's thought just to have perceived the employee as having been involved in some association then is subject to a claim and  have to show some facts to draw that inference and you just can't say i'm involved in this in the employer fired me because of that just sort of to show some connection between the firing and political belief i would just take you back to my hypothetical of getting rid of the sign and his political view his support of spying no it's discussed in the in the chief's office right and then he has to be reassigned and the chief has to really worry that he's going to be sued that my point is this the set of cases that you have to be concerned with there have been no other cases we've been able to identify like this one very small but the downside risk is if you go three minutes somebody had come in to me before today's argument and just said it is the first amendment prevent the government from punishing a person because that person does not share the government's views i would have said precious of course the first amendment protects that that's the whole point of the first amendment and now you're telling me no the first amendment  not prevent the government from punishing a person because that person doesn't share the government's abuse unless that person is actively opposed to the government's views but if that person just really could not care less which a lot of people in this country could not care less they don't vote they don't pay attention they wouldn't know who was running but the government can punish that person because that person doesn't share the government's views and i would have said that is one strange doctrine it may be that i have not persuaded you in this case but i will say justice kagan you asked is can the government do it the government cannot because there are lots of other protections and remember if the person is politically neutral it is the case that the right of political so sation is t of political so session if you aren't engaging it you aren't actively pursuing the right in any way we're even if you aren't active about it thank you counsel mr frost you have a minute left i'm not taking a position so i am i'm so totally confused i don't like the way it was presented to us but i thought he testified that he had made a choice not to get involved in the campaign but it was his friend and he supported him so he wasn't neutral he just wasn't in gauging in association a conduct by choice that's what i thought that's correct point i was trying to make was the fact that in this case he was not going to be exercising his right to vote or campaign for him but clearly he engaged in what we would consider core first amendment activity by picking up that signed the mistake that the employer made was actually one that they perceive him as actually campaigning on behalf of spag all and that should make no difference for the simple reason