John G. Roberts, Jr.: We'll hear argument first this morning in Case 14-1280, Heffernan v. City of Paterson, New Jersey. Mr. Frost.
Mark Frost: Mr. Chief Justice, and may it please the Court: Public employees have a right not to be demoted on patronage grounds. It does not matter if you are affiliated with a specific party or that you are nonaffiliated. 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.
Anthony M. Kennedy: How would you define the right at issue in this case?
Mark Frost: The -- the issue here is --
Anthony M. Kennedy: How would you define the right that your client wishes this Court to vindicate?
Mark Frost: I'm defining the right in that pursuant to Elrod and its progeny, that there -- it is not necessary to have any affirmative acts, that by virtue of being a public employee, he has the right not to engage in political association.
Anthony M. Kennedy: Well, that's just a restatement of -- of Elrod. I -- 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 statement?
Mark Frost: That would be a fair statement, Justice Kennedy.
Anthony M. Kennedy: Because -- look, do we -- it sounds to me from the way you began your argument 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 chief of police who was challenging the incumbent, if he had been engaged in the activity, that would be protected. He could not have been demoted. If -- you want us to take the case on that -- do we have to accept that proposition for you to prevail in this case?
Mark Frost: No, you do not have to accept that proposition. Proposition is just clearly that, as a public employee, he has a right to either associate or nonassociate, and he doesn't have to commit an affirmative act in support, in this case, of the mayor's opponent, which was Chief Spagnola.
John G. Roberts, Jr.: Well, but the -- 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. 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.
Mark Frost: In this case, Mr. Chief Justice, the case comes to us with respect to association. With respect to speech, speech is governed by a different doctrine than association. There is no need to do a Pickering analysis in this case.
Antonin Scalia: He wasn't associating with anybody any more -- any more than he was speaking. He was doing neither one.
Mark Frost: Justice Scalia --
Antonin Scalia: He was associate -- associating with his mother, I suppose, in picking up the sign for her. But he was not expressing any political view. He was not associating with a political party. What case of ours vindicates the right that -- that Justice Kennedy described to you and which you readily agreed with? What -- what case of ours vindicates that --
Mark Frost: Elrod would stand for that proposition.
Antonin Scalia: Elrod --
Mark Frost: Elrod --
Antonin Scalia: Elrod 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.
Mark Frost: But he was not favoring a political party.
Antonin Scalia: Exactly. 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. If he was fired because his -- his -- his government employer thought he had committed a felony and he hadn't, he might -- he might have a cause of action under some statute. But there -- there -- there's no constitutional right not to be fired for the wrong reason, and that's what happened here.
Mark Frost: 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 Elrod --
Antonin Scalia: Where do we say that? We never said that. Elrod and -- and Branti are -- are cases 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 associating. So how could he possibly have a cause of action under the First Amendment?
Mark Frost: 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, is -- is that since they were not affiliated with the Republican party or supporting the Republican party or endorsed by the Republican party, none of those individuals would have been promoted or transferred. They didn't take any affirmative acts.
Samuel A. Alito, Jr.: I mean, I don't understand -- I don't understand your answer. What -- what expressive activity did he engage in? 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.
Mark Frost: In -- in Waters this Court looked at the motive of the employer, the motive of government. If government perceives that you are engaging in a political activity and the motive is to suppress one's beliefs and associations or nonassociations, then you look at it through government's analysis, and it's their basis of their facts that you are evaluating. Here they evaluated the facts that he was engaged in campaigning. Officer Heffernan went to a political gathering. He went and picked up a sign. What was misperceived by his employer was the fact of his intent. He said that, I'm not intending to support Spagnola, but he is doing all those incidents that are core First Amendment activities.
John G. Roberts, Jr.: Well, let me just -- to clarify what I -- how I thought the case was presented. Let's say the employer comes in to Smith and says, you know, Smith, I saw you getting a -- a -- 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 try to get advantage of the fact that there -- you could perhaps have argued this was expressive activity. Say, oh, he was at a meeting, a political event. He was getting a sign. But your theory, I thought, didn't depend on that at all.
Mark Frost: It --
John G. Roberts, Jr.: 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?
Mark Frost: Yes, Mr. Chief Justice.
John G. Roberts, Jr.: Okay.
Mark Frost: And the point that I was making --
Anthony M. Kennedy: And then again -- but it's still not clear to me: What is the right that he's asserting? And -- and I'll back up while you're thinking about that. Is -- can a local government say that all our employees must be neutral in campaigns and must not take part in campaigns?
Mark Frost: Well --
Anthony M. Kennedy: They can vote, but they can't take part in campaigns? Like the Hatch Act?
Mark Frost: Well, there are Hatch Acts. There was no provision here.
Anthony M. Kennedy: Can the government insist on neutrality?
Mark Frost: I think the government can have a policy after balancing the interests between that of the employer and that of the position.
Ruth Bader Ginsburg: Is that an issue --
Mark Frost: I was not saying --
Ruth Bader Ginsburg: Is that an issue -- is that an issue in this case? Is there any allegation that there was such a policy of neutrality that no employee could engage in political activity?
Mark Frost: Okay. Justice Ginsburg, there was no such policy in this case involving --
Sonia Sotomayor: I'm sorry. I thought there was an unwritten policy.
Mark Frost: There -- there was a policy that Chief Wittig said that existed with respect to members of his staff only. However, with respect to that policy, there's no testimony regarding that policy. In other words, the people that worked in the Chief's office -- there were four individuals who were officers -- none of them ever heard of that policy. Also, that policy was never raised below in any of the motions for summary judgment or the motion before the Third Circuit twice. So we believe that that motion is waived. But to answer your question, Your Honor, is the fact that no one knew of this policy. So -- so he could say he had a policy and he could make reference to it, but it's just not supported by any evidence in this case.
John G. Roberts, Jr.: 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 -- I don't know -- collective bargaining?
Mark Frost: Your Honor --
John G. Roberts, Jr.: 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, I was on leave yesterday. It wasn't me.
Mark Frost: Well, that's not a constitutional violation for --
John G. Roberts, Jr.: No, no. My point is that maybe this shouldn't be a constitutional violation if there are adequate remedies to address what may or may not be a First Amendment issue.
Mark Frost: Mr. Chief Justice, there are -- there were no other remedies.
John G. Roberts, Jr.: Okay.
Mark Frost: There is a -- State of New Jersey has a State Civil Rights Act which mimics 1983. Just because there is a -- such a right, doesn't mean that you can diminish the First Amendment and give up your First Amendment rights. So clearly, we proceeded with the fact that there was a violation of the First Amendment just because it was created by the State. There is no civil service --
Antonin Scalia: What is the New Jersey Act? That's a strange act. It protects State employment only against First Amendment violations?
Mark Frost: No, it -- it mimics --
Antonin Scalia: I can't imagine that. It must -- it must have other protections for State employee -- employees.
Mark Frost: With respect to the New Jersey statute, it's just identical to a 1983 cause of action, so it doesn't give you any additional rights. Officer Heffernan --
Antonin Scalia: How does it read? You have to violate the Federal constitution to get relief under New Jersey law?
Mark Frost: Do you have to?
Antonin Scalia: Yeah. That's what 1983 says. What is -- what does New Jersey law say?
Mark Frost: He proceeded in Federal court. He has every right to proceed in Federal court for a First Amendment violation.
Antonin Scalia: What does the New Jersey law say? You brought it up. I didn't bring it up. What does it say?
Mark Frost: New Jersey law, the statute just mimics a 1983 cause of action.
Antonin Scalia: So it says -- it says if you violate -- you can't fire a State employee in violation of the Federal constitution. That's what the New Jersey law says. That's a strange law.
Ruth Bader Ginsburg: You don't have the text of it, do you?
Mark Frost: I'm sorry.
Ruth Bader Ginsburg: The text of the New Jersey law, so we can know what we're talking about.
Mark Frost: Sure. I mean, this was -- New Jersey law can't create substantive rights. So with respect to this matter, he's also not protected by civil service, either.
Samuel A. Alito, Jr.: Well, Mr. Grabowski's brief says New Jersey law provides a statutory right of action for an attempt to violate an individual's civil rights. Is he wrong?
Mark Frost: An attempt to violate?
Samuel A. Alito, Jr.: Yeah.
Mark Frost: It -- it is included in there, but -- but that doesn't give you an exclusive right. You can't diminish his First Amendment rights.
Samuel A. Alito, Jr.: No. The question is not whether the New Jersey law somehow abrogates First Amendment rights. The question is whether he has an independent remedy under State law. That's the question, I think, that's being asked.
Mark Frost: He could have a remedy under State law. But it -- in this instance, he pursued it, his First Amendment rights.
Sonia Sotomayor: I'm sorry. How could he? If we say there's no First Amendment right, what civil right has he -- was violated if -- if what Mr. Goldstein says is the --
Mark Frost: The civil rights --
Sonia Sotomayor: -- is the state of the law attempting to violate civil rights? What right, if we say there isn't the First Amendment?
Mark Frost: The right not to associate.
Sonia Sotomayor: Well, if we say it doesn't exist. You lose this case.
Mark Frost: If what doesn't exist, Justice Sotomayor?
Sonia Sotomayor: Just that, the right you're claiming.
Mark Frost: He has every right to bring this claim in Federal court as --
Samuel A. Alito, Jr.: He may have broader substantive rights under New Jersey law. I would be somewhat surprised if that were not the case. The civil rights to which this -- the New Jersey statute refers may refer to rights under the New Jersey constitution or other New Jersey laws.
Mark Frost: There are New Jersey laws. But -- but just because -- again, it doesn't abrogate your First Amendment rights. So the fact -- it shouldn't matter whether or not he --
John G. Roberts, Jr.: Just --
Mark Frost: -- engaged -- there could have been a violation of any type of New Jersey statute. It wasn't alleged in this case. It was never brought up by Respondents in this case during -- during any of the arguments in any of the briefs. And -- and therefore, with respect to this matter, it's our position that he has every right to maintain this litigation with respect to violation of his First Amendment right. And here, he 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 in Elrod and its progeny. Furthermore, the Third Circuit makes its mistake in requiring Heffernan to actually engage in some type of political activity, campaigning. That's not necessary, as I've indicated, with respect to Elrod and the Rutan plaintiffs. Additionally, the Third Circuit's decision in this case is 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 at a campaign gathering, and one police officer states to his employer, yeah, I was supporting Spagnola, and Mr. Heffernan would say, no, I'm -- I'm not supporting it. I'm doing this to pick up a sign for my mother, should make no difference. The outcome is still the same in the sense that they're both engaged in that activity. The only difference is, is that the employer perceived Mr. Heffernan as engaging in protected activity. They went to stifle and squash his rights of association or nonassociation. 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 50, 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 a chairperson of the election. And he says to Heffernan, says, boy, you better be careful. Maybe you should come back later while we're -- because we're hanging up these signs. And that clearly shows the chilling effect that it would have not only in this police department or in the City of Paterson, but other employees in different jurisdictions and different areas would have the same issues. You would have to think twice before you did something. If you went to a political gathering or a campaign, or you went 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 you, you would see that that is action based on a motive to suppress one's rights.
Antonin Scalia: All of those things would be true if the mayor gave a speech saying I am going to fire anybody who's not a Republican. All of those things would be true. Would it chill people -- blah blah blah -- would there be a cause of action? Would anybody have a cause of action because of that speech?
Mark Frost: Because of the speech itself?
Antonin Scalia: Yeah, just the speech. He hasn't fired anybody. He's just said I am going to fire anybody who's not a Republican, or anybody who's not a Republican will not get promoted.
Mark Frost: Justice Scalia --
Antonin Scalia: Does anybody have a cause of action for that?
Mark Frost: There would be no claim, because no action was taken. So -- so part -- you have the perception that they engaged in an activity.
Antonin Scalia: Exactly. So -- so what counts is whether action was taken for a particular reason, not whether you chilled -- whether you chilled people, which you're arguing to us is this is unconstitutional because it chills other people. That -- that doesn't -- that just doesn't carry water.
Mark Frost: Justice Scalia, what carries water is the fact that in this instance, Heffernan was demoted on the employer's mistaken perception that he was engaged in activity, and you don't need to engage in that activity.
Ruth Bader Ginsburg: Would you -- would you say that he was demoted because he gave the appearance of exercising his First Amendment rights?
Mark Frost: 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 of what took place with Mr. Heffernan. The issue was clearly that it was ill will. It was because it was against the administration, and they took that action to suppress that belief, and it chills others. Mr. Chief Justice, may I reserve the remaining time --
John G. Roberts, Jr.: You may.
Mark Frost: -- if there are no other questions? Thank you.
John G. Roberts, Jr.: Ms. Anders.
Ginger D. Anders: Mr. Chief Justice, and may it please the Court: I'd like to start with Justice Kennedy's question about how we define the right here. We think that 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 --
Anthony M. Kennedy: And what's your best case for that proposition?
Ginger D. Anders: Well, we think that there are -- 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 defined the right of issue in Branti and Rutan, and again in O'Hare, demonstrates that an employee doesn't have to affirmatively exercise his First Amendment rights first. So in those courts -- in -- in those cases the court said that the plaintiff can show a constitutional violation of the First Amendment simply by showing that the employer acted for the unconstitutional purpose of suppressing disfavored political --
Ruth Bader Ginsburg: And those cases, Ms. Anders -- I missed what you said those cases were.
Ginger D. Anders: That was Branti 445 U.S. at 517. Again in Rutan, and then in O'Hare, which is the government contract --
Antonin Scalia: You say in all of those cases, no First Amendment right was being exercised, right?
Ginger D. Anders: No.
Antonin Scalia: Is that your point?
Ginger D. Anders: Well, I think actually in the Rutan case there were -- there were three plaintiffs, and it wasn't clear, actually, whether they had engaged in any affirmative exercise of their First Amendment --
Antonin Scalia: Was it clear that they hadn't?
Ginger D. Anders: So what the court said was that they had --
Antonin Scalia: Was it clear that they hadn't?
Ginger D. Anders: It was not clear whether they had or hadn't, and the court didn't inquire into that. So what had happened there was that the -- the plaintiffs had been -- 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, to seek the support, which would be an exercise of 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.
Antonin Scalia: Yeah. I thought in all of these cases up to now, whenever anybody's fired, demoted, or not even promoted, it hurts and -- 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 -- the employer believed that I was thus and so or not thus 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.
Ginger D. Anders: Well, I think in the employment context, I think there's no question that the plaintiff was directly injured by the unconstitutional condition. But to respond directly to your point, I think -- I don't think there's a serious concern here that there will be a meritless -- a flood of meritless lawsuits or anything like that, and that's primarily for two reasons. I take your point that -- that, you know, this will expand the universe of -- of litigation somewhat, but we already know in the statutory context, the courts have recognized suits based on a mistaken perception, and -- and in that context we haven't seen any flood of meritless lawsuits. And with respect to Elrod claims specifically, I think it's always been fairly easy for plaintiffs to allege that a particular affiliation of belief, I was in the Republican party --
John G. Roberts, Jr.: How do you know we haven't seen a flood of meritless lawsuits in that context?
Ginger D. Anders: Well, we -- we haven't in the statutory context.
John G. Roberts, Jr.: Yeah, the one that you were just referring to.
Ginger D. Anders: Well, we looked at this, it -- it doesn't come up very much. And when it does, it -- it looks to us that -- that courts have been able to use the standard technique to --
John G. Roberts, Jr.: You're looking at the reported decisions rather than -- you haven't done any survey to see how many complaints have been filed in -- in this type of case?
Ginger D. Anders: No. But when you looked to reported decisions, what you see is that courts are able to use Twombly and Iqbal and summary judgment in order to get rid of claims where the allegations aren't plausible or there's no evidence. But I also think if the plaintiffs are going to have to allege that -- that they actually held the beliefs in question, this is going to raise exactly the concern that Justice Kennedy mentions earlier about oversight of beliefs, probing into beliefs. So this will affect all Elrod cases. So anytime an Elrod case is brought, the defendant will have the incentive to say --
Anthony M. Kennedy: So are you saying there's a right to be secure from government oversight of your beliefs?
Ginger D. Anders: Well, I think the Court recognized in O'Hare that that is a particular concern in the affiliation context. We -- we don't want courts to have to -- to examine the nature and extent of the plaintiff's beliefs or associations.
Antonin Scalia: I mean, that's a good idea, maybe. And maybe -- maybe it should be in some civil service act, but where do you find it in the First Amendment?
Ginger D. Anders: Well, I think the right -- the right in question is the right not to be subject to a test of political affiliation --
Anthony M. Kennedy: Is -- is that because you're concerned with a chill, or is there some other right that is -- is somehow affected that's a First Amendment right of the individual? You turn around and you say the government cannot act for an unconstitutional purpose, but we usually ask how is the defendant hurt? What is his right? That's still a little unclear to me.
Ginger D. Anders: We think the defendant has been hurt in the constitutional sense because the way that the court has defined the right in question is the right not to be subject to a test of political affiliation when it's not a reasonable job requirement. And I do think what the Court said in --
John G. Roberts, Jr.: I think -- please.
Ginger D. Anders: What the Court said in O'Hare, essentially, was that -- not necessarily talking about a separate right not to be subject to probing of beliefs, but 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 a plaintiff's beliefs. And that is exactly what will happen.
John G. Roberts, Jr.: 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, 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 mistaken reason?
Ginger D. Anders: I think with, at least with respect to some job actions, there -- there would be such a right under New Jersey law, and that's -- I'm not sure whether it would apply here, but I think the gravamen of -- of plaintiff's complaint here is not that he was fired for an inaccurate reason; it's that he was -- he was demoted because -- for an improper purpose, the perception that he was engaging in protected First Amendment activity. And --
Ruth Bader Ginsburg: You've brought up in your brief, I think, that -- that the employer might have had a contract-type policy. I think you said we should remand to determine whether this employer said nobody engages in political activity.
Ginger D. Anders: Well, I think -- I think if you rule for the Petitioner here, there would be a remand anyway because the Court hasn't --
Ruth Bader Ginsburg: Is it based on the facts up till now to think that there was such a policy?
Ginger D. Anders: Well, so there -- there is, I think, a factual dispute about this. So if you look at the -- the summary judgment filings, this is document No. 189 on Pacer, there -- there are, in -- in the Respondents' statement of 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 that nobody knew about that policy. So we think that is one thing that potentially the lower courts would have to look at, decide whether it was preserved and -- and resolve the dispute in that sense. But I do want to get back to another concern that I think Respondents' position raises. You know, we do think that -- 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 a mistaken perception of his beliefs, that creates exactly the same chilling effect with which the Elrod 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 logic of Respondents' position applies not only in cases of honest mistake, it also applies in cases in which the employer acts to exploit a loophole, essentially. You can imagine a situation in which the employer knows that some people have engaged in political affiliation. The employer wants to send a message, and it does that by acting against the employee it thinks didn't actually engage in that association. And so I think that is one of the dangers of Respondents' rule here, that it will create a loophole. And so what we are saying, essentially, is that it's just a narrow corollary to the Elrod right that the Court has already recognized. When the employer acts with the exact same intent that -- that is already impermissible under Elrod, and it injures the employee in his employment as a result, then the employer should be equally liable. It shouldn't get a free pass simply because it -- it's ill-motivated and wrong. If there are no further questions.
John G. Roberts, Jr.: Thank you, counsel. Mr. Goldstein.
Thomas C. Goldstein: Mr. Chief Justice, and may it please the Court: The doctrinal 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. And 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 identified as the right not to have your political views inquired in. And this is actually discussed in the Court's opinion in O'Hare in describing Elrod and Branti. And so I want to start there because we have to recognize that this right has never been recognized in any other political association case whatsoever. And there's no logical reason why it would occur specifically in the public employment context, which is an unconstitutional --
Ruth Bader Ginsburg: Can you explain, Mr. Goldstein, what sense it would make to say there are two people, the example Mr. Frost gave. One of them is a big supporter of Spagnola, and he gets demoted. And the other is politically neutral, and he gets demoted because the employer thinks he's the supporter of the rival mayoral candidate. What -- how could you make sense to a person of ordinary reason that one of them, the one who was in fact engaging in political activity, can't be demoted but the other one, who just was innocent, didn't do anything?
Thomas C. Goldstein: I'm sorry. I have to focus on, really, the precise wording of your hypothetical, but I think you may actually have something slightly different in mind, because you identify this, the second employee, one who is politically neutral. And the Court has said, in cases like Elrod and Branti, 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 -- 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 Spagnola. 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. And so, Justice Ginsburg, if you were to ask me that question, which is what difference -- what -- what sense does it make? The sense that it makes is one is exercising a constitutional right, and one doesn't --
Elena Kagan: So just to make sure I understand what you're saying, suppose there's 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 demote or fire Republicans. He can't remove, demote, or fire people who have other political views, neither Democrat or Republican. But what he can do is he can get rid of anybody who is just politically apathetic. Is that your view?
Thomas C. Goldstein: 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 Elrod and Branti.
Anthony M. Kennedy: So you -- you encourage the person to be politically active and then fire him or her because they're politically active the wrong way? (Laughter.)
Thomas C. Goldstein: No, sir.
Anthony M. Kennedy: Suppose the employee says, you know, I don't like the evening news. I -- I -- I like fiction. I -- I don't -- I don't know if I'm Republican or Democrat. I don't care.
Thomas C. Goldstein: Right.
Anthony M. Kennedy: He -- he -- he cannot be fired? What is his right?
Thomas C. Goldstein: 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 --
Elena Kagan: See, I --
Anthony M. Kennedy: The -- the government has -- excuse me.
Thomas C. Goldstein: Sorry.
Anthony M. Kennedy: The -- the -- the government has a right to compel him to declare one way or the other?
Thomas C. Goldstein: No -- Justice Kennedy, and that -- 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 O'Hare, it did it in a very specific and really important way, and that is it looked at cases like Elrod and Branti, which are general policies. And what the Court has said there, is that when it's a sweeping policy, it's not necessary into -- to inquire into individual political beliefs. And what those cases ought to be understood as is applications of First Amendment overbreadth 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 weren't asserting First Amendment rights, the policy can be facially unconstitutional, and we don't inquire into the individual standing of the plaintiff. And that's what happens in Elrod and Branti. It's not necessary to inquire into the -- each individual employee. It is an entirely different --
Elena Kagan: See, I had always thought that the -- the idea behind 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 to -- let's say in my hypothetical, get as 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 -- an independent, or somebody who has never thought about politics in his life, because the government is acting in a way that's wrongful, irrespective of that.
Thomas C. Goldstein: And 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 thinks 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 --
Elena Kagan: 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?
Thomas C. Goldstein: No. It's a very important distinction. So let me give a hypothetical that ought to be hard for us, and that is Heffernan 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 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 is an Independent or a Democrat or Republican, the First Amendment doesn't care. But if the plaintiff is going to pursue a claim that says I'm not engaged in association or speech, there is nothing to inquire into --
Ruth Bader Ginsburg: 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, then, because he she wasn't pregnant?
Thomas C. Goldstein: Justice Ginsburg, the courts are divided. The position of the EEOC 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, regarded as claims.
Antonin Scalia: Those -- those statutes focus on the employer. The employer cannot discriminate on the basis --
Thomas C. Goldstein: Right.
Antonin Scalia: -- of sex.
Thomas C. Goldstein: Right.
Antonin Scalia: 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.
Thomas C. Goldstein: So --
Antonin Scalia: That's the difference between the two cases.
Thomas C. Goldstein: Well, it will not surprise you that I agree, Justice Scalia. The -- Justice Kagan, if -- 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 of rights there. The Court has pointed out that there is 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 -- you know, hypotheticals that relate just to this case. Imagine that the chief of police, with the same motivation, went up to Heffernan as he went to pick up the sign, grabbed the sign, and tore it up. Or imagine that Heffernan was trying -- was stopped from entering a parade in favor of Spagnola, but what he was actually trying to do was just cross the street. Or he went to the building where it is that Spagnola had the -- his headquarters, and the chief of police stopped him from going in, but he was actually going to his lawyer's 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. Okay? 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.
John G. Roberts, Jr.: What is -- what is the other law here? What -- what relief does he have?
Thomas C. Goldstein: He has two forms of relief. The 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 Web sites of the State of New Jersey, and it is exactly what you would expect. In fact, it's a little bit broader. It says that if you are -- you have an employment action that is inequitable, it is -- you -- it is grievable. The second thing is the attempt provision, which was discussed, and Justice Alito is right, that there are broader civil rights under New Jersey law. And this just makes sense. The Court, in cases --
John G. Roberts, Jr.: Well, do -- do you agree that the Petitioner is entitled to relief under that provision of the collective bargaining agreement?
Thomas C. Goldstein: If -- if he -- his allegations of the facts are correct, yes.
Anthony M. Kennedy: In your hypothetical about stopping the person from crossing the street, or, they think, entering the parade, the individual is -- has no right to insist that the government doesn't make a First Amendment judgment about his activities?
Thomas C. Goldstein: That's correct. Justice Kennedy --
Anthony M. Kennedy: In -- in other words, the -- the -- the individual in the -- in -- in -- in -- the citizen of the United States, have no right, have -- have -- have no -- have no injury, have no interest in making sure the government doesn't evaluate everything they do from a political standpoint?
Thomas C. Goldstein: 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 the context in which there is 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 is another side of the coin. Take it from the perspective of the supervisor. If this right is recognized, which is to say the plaintiff need not have engaged in any association, then the supervisor's 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 a Spagnola friend and supporter. Okay? 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. Okay? The chief, if the Petitioner is right here, really has to worry because if it's discussed, then there's every reason that Heffernan can just bring a lawsuit saying, look, I wasn't actually involved in the campaign, but you did because he was my friend. And that is a very significant consequence for the individual rights. Now, if we didn't have other protections that get to the concern about conscience, I could see the case being even stronger.
Anthony M. Kennedy: We know that you can't -- let's assume in this particular position you can't be fired because you're a Republican or a Democrat and that's what they -- that's what -- what they do. But that -- the person did not engage in that activity. He's still -- he still is in the position of the government ascribing to him a political belief that he does not have.
Thomas C. Goldstein: Justice Kennedy, that's right. The government thinks a lot of things about me, okay? 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 --
Anthony M. Kennedy: Here, they thought and they acted.
Thomas C. Goldstein: Okay. Or to act, Justice Kennedy.
Ruth Bader Ginsburg: It's not just something.
Thomas C. Goldstein: Oh.
Ruth Bader Ginsburg: It's -- the government is taking action against a person because the government thinks that that person is exercising First Amendment rights.
Thomas C. Goldstein: Just --
Ruth Bader 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.
Thomas C. Goldstein: Well, essentially all of the rights, individual rights in the Constitution, other than the antislavery provision, requires State action. They all talk about what the government can't do. But the government --
Ruth Bader Ginsburg: Yes, so here, the government acted. No question they demoted the person. This was a detective, and they put him back on the beat. So the government acted. Why did they act? Because they thought that this person was engaging in political activity.
Thomas C. Goldstein: Well, Justice Ginsburg, let me just say that I don't think it's -- it's contested after the Petitioner's reply brief. You described 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. It is well settled in this Court's precedents that the threshold inquiry under Pickering is did the individual engage in the constitutionally protected activity? This actually is at issue, I should say, in the Court's other associational 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 at issue here? We think that's a critically important distinction, whether you look at this as kind of a 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 Elrod and Branti-type case, which is what's discussed in that 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.
Elena Kagan: I guess I'm not sure how that works. It just seems to break down very easily, if you can't have a broad rule that says that you can fire everybody but Democrats. But you're saying that you are going to allow somebody to come in and fire people one at a time.
Thomas C. Goldstein: Justice Kagan, that's, of course, not what I'm saying. What I'm saying is that under First Amendment Overbreadth Doctrine, when you have a general policy -- and this is what we think happened in Elrod and Branti -- the fact that you don't -- you do not inquire into the individual person's political views because the policy is facially unconstitutional. But it has never been the case in any context. And the other side has had 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 in --
Elena Kagan: But you're saying -- and -- and I think you said this straight out -- you're saying I can come into an office -- I'm a Democrat. I can -- I can identify every person without a well-known political view, every couch potato out there, just fire one after another, after another, after another. Replace them all 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 will not be a violation of the First Amendment.
Thomas C. Goldstein: That will -- 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. I don't think you can do it. But the second is that's right. The Constitution doesn't fix everything.
Anthony M. 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.
Thomas C. Goldstein: Justice Kennedy, I think that that is not a First Amendment violation. I don't think the other side thinks it's a First Amendment violation. Remember that there's the materiality requirement.
Elena Kagan: See, I had always thought that the First Amendment running through all our cases is an extremely strong strand. That 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.
Thomas C. Goldstein: Justice Kagan, 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, that the individual has to have engaged in the constitutionally protected activity. Every one of -- Garcetti says the same thing. You have to have an individual --
Stephen G. Breyer: Can I just approach the same thing from a different perspective? Suppose can Congress pass a law or a legislature pass a law that attempts to abridge the freedom of speech. Is that a violation of the First Amendment? It's an attempt.
Thomas C. Goldstein: What would the attempt --
Stephen G. Breyer: Well, let's say there doesn't have to be a thousand examples.
Thomas C. Goldstein: The Court --
Stephen G. Breyer: You say that's the law. No one can espouse in a public place the political philosophy of Ruritanianism, okay?
Thomas C. Goldstein: No.
Stephen G. Breyer: Okay. I mean, I doubt that they'll pass such a law -- (Laughter.)
Stephen G. Breyer: -- but I just -- substitute any one that you want for that. They pass it. And by the way, the six people who hold that philosophy all leave on a boat before the effective date, but -- or what's more likely, they bring a declaratory judgment action, and the law never takes effect.
Thomas C. Goldstein: Right.
Stephen G. Breyer: And therefore, it had no impact. And that happens every day of the week. I'm just wondering if such a law, which is an attempt -- it's right on the books as blatant as you want -- whether that violates the First Amendment. That's a serious question. I'm not taking a point of view. I want to know what you think.
Thomas C. Goldstein: Justice Breyer, the reason that we allow --
Stephen G. Breyer: Well, I just want to know, is it yes or no? Does it -- in your opinion, does it attempt to -- a clear attempt to violate the First Amendment in a statute? It has general application. Does it violate the First Amendment? Does it abridge the freedom of speech?
Thomas C. Goldstein: If it's only going to be an attempt and it's not going to succeed, no. The statute you describe is unconstitutional.
Stephen G. Breyer: It is unconstitutional.
Thomas C. Goldstein: That's right. There are all kinds of times --
Stephen G. Breyer: It will have a lot of bad effects. It will have all kinds of chilling effects all over the place.
Thomas C. Goldstein: If it's defined, Justice Breyer, as not going to succeed, if the statute doesn't say --
Stephen G. Breyer: No, no, by chance it happens not to succeed.
Thomas C. Goldstein: Oh, no, Justice Breyer. If the person --
Stephen G. Breyer: It's my hypothetical. (Laughter.)
Thomas C. Goldstein: I know. I'm just -- I'm just trying to keep up with it. The -- in -- in the one that you just described, Justice Breyer, if it is the case that the law is going to go into effect, we do allow, including under First Amendment overbreadth grounds, an effort to bring a declaratory judgment action.
Stephen G. Breyer: Of course. And I'm just asking you if, in fact, they think it will succeed, they want it to succeed, that's why they passed it, and through a fluke it fails, does the fact that it fails mean that it doesn't violate, it doesn't -- does it not -- does it or does it not violate the First Amendment?
Thomas C. Goldstein: It doesn't.
Stephen G. Breyer: It does not.
Thomas C. Goldstein: And here would be an example.
Stephen G. Breyer: And he fails -- if it fails --
Thomas C. Goldstein: If I could just finish, Justice Breyer, 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 Ruritania, that is to say the law won't go into effect -- we tried, but the money was taken away from us -- it's not unconstitutional.
Antonin Scalia: Or -- or you could say that the law is passed by Congress but vetoed by the President, is there a violation of the Constitution?
Thomas C. Goldstein: There would not be. But in my hypothetical vote in which -- or Justice Breyer's where it actually goes into effect --
Sonia Sotomayor: We're off on a tangent because there's no injury in this situation when a law doesn't go into effect. But coming back to what Justice Breyer, I believe, is attempting to say -- (Laughter.)
Sonia Sotomayor: 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 Elrod and Branti and 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.
Thomas C. Goldstein: More than a policy, it will actually have adverse consequences for someone trying to exercise their constitutional rights.
Sonia Sotomayor: Well, someone, they have come along and not promoted people.
Thomas C. Goldstein: Yeah.
Sonia Sotomayor: All right? So you have to have someone come in and say I'm not a Democrat?
Thomas C. Goldstein: Justice --
Sonia Sotomayor: I'm not a --
Thomas C. Goldstein: Sorry.
Sonia Sotomayor: -- Republican? Or you need someone to tell you what they are?
Thomas C. Goldstein: No. No. Common sense does not leave the courthouse, 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 there doesn't need to be an inquiry. But the --
Sonia Sotomayor: So why isn't it simple to say, I'm not hiring you, or, I'm demoting you because you politically associated? And doesn't that chill the person from even walking by a campaign? Doesn't it chill others who do want to associate marginally?
Thomas C. Goldstein: No. It's a real --
Sonia Sotomayor: I'm assuming there's no policy in place, that there's not --
Thomas C. Goldstein: Justice --
Sonia Sotomayor: There's nothing to prevent this otherwise, like the Hatch Act.
Thomas C. Goldstein: I think it's a really important point on the question of chilling because Elrod and Branti and the rules that also -- and O'Hare, which is 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 Spagnola, or even of the mayor, or had decided to remain politically neutral, this is a bizarre case that comes to you on the assumption that he is completely politically apathetic.
Antonin Scalia: It -- it is bizarre. And do -- do you really believe, Mr. Goldstein, that the Constitution does not solve all problems? You -- you -- (Laughter.)
Antonin Scalia: -- made a statement to that effect. You really believe that?
Thomas C. Goldstein: No, but I -- I --
Antonin Scalia: It doesn't solve every problem.
Thomas C. Goldstein: No. But I do think that there is a concern that comes into play. And so I do not mean to demean the concern about the government having a sense of what individuals' political views are. But I'm saying that that happens, Your Honors, 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 plaintiff has always come in and said, I'm a Democrat, right? The Elrod Branti rule when it's involved, one-off cases. The opinion in 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 rights.
Stephen G. Breyer: But that is a First Amendment problem for the reason that lots of other people will have their speech chilled. 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 -- of attempts generally.
Thomas C. Goldstein: It's not true of the Constitution.
Stephen G. Breyer: Why not?
Thomas C. Goldstein: Well --
Stephen G. Breyer: 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 themselves injured, nonetheless everybody else is, and it would violent the First Amendment.
Thomas C. Goldstein: Under --
Stephen G. Breyer: That, I think, is what you have here, which is why I raised my point.
Thomas C. Goldstein: Great. Justice Breyer -- 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 overbreadth doctrine was born because of our hypothetical. The concern that a broad policy or statute will have widespread effects. That is not anything like this. We have a guide --
Antonin Scalia: Do you know of any case in which we have relied on chilling effects where what was at 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.
Thomas C. Goldstein: To the contrary, I can tell you that in -- in both Waters and Garcetti v. Ceballos, the Court said, look, we recognize the rule that's being proposed to us. So in Waters it was the idea that the public -- the employer's views wouldn't matter; it would just be whether the speech was protected. In Garcetti it was the question of whether it was the public employer's speech. And the public employee's argument in both those cases is that, look, these rules are going to chill speech because they are of uncertain boundaries. We need to have wide-ranging expression. If I have to bring my case, there will be inquiries into my speech views or whatever, and the Court said we just have to balance things here. There is a real concern that is rooted in a history of the United States involving political patronage. We have -- 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.
Elena Kagan: And the -- (Laughter.)
Samuel A. Alito, Jr.: And the question in this case seems to me to be highly artificial. It's sort of -- it's like a law school hypothetical.
Thomas C. Goldstein: I agree.
Samuel A. Alito, Jr.: 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, and the other -- I mean one was the issue that's -- the question of his motivation, and the other was this alleged policy prohibiting any kind of political activity. Even in the -- the person who is just apathetic, is there not a -- a First Amendment right to be -- say, I don't -- I don't like politics, I don't want anything to do with politics, I'm not going to register, I'm not going to vote?
Thomas C. Goldstein: All right. So Justice Alito, the Third Circuit has a rule discussed in the brief -- brief in opposition adopted in a case called Ghaly 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 will say that it does nonetheless matter because there are going to be other kinds of cases where you have a public employee that just is not asserting any rights at all, and is not involved, say, in 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 our real --
Sonia Sotomayor: I'm sorry. You have to -- you have to show some facts to draw that inference.
Thomas C. Goldstein: Well --
Sonia Sotomayor: I mean, you just can't say, I'm involved in this and the employer fired me because of that.
Thomas C. Goldstein: Well, Justice Sotomayor --
Sonia Sotomayor: To show some connection between the firing and --
Thomas C. Goldstein: Right.
Sonia Sotomayor: -- the political belief.
Thomas C. Goldstein: I would just take you back to my hypothetical of getting rid of the sign. And his political view -- his support of Spagnola is discussed in -- 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. The -- 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. It's very small.
Elena Kagan: Well --
Thomas C. Goldstein: But the downside risk is significant.
Elena Kagan: Mr. Goldstein, I mean, if somebody had come in to me before today's argument and just said, does the First Amendment prevent the government from punishing a person because that person does not share the government's views, I would have said, why, yes, 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 does not prevent the government from punishing a person because that person doesn't share the government's views, 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.
Thomas C. Goldstein: It -- it may be that I have not persuaded you in this case. (Laughter.)
Thomas C. Goldstein: The -- the -- I will say, Justice Kagan, what you ask 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 association is the right of political association. If you aren't engaging it, you aren't actively pursuing the right in any way, or even if you aren't active about it.
John G. Roberts, Jr.: Thank you, counsel. Mr. Frost, you have a minute left.
Mark Frost: Thank you, Mr. Chief Justice. A couple points that I want to make with respect to declaring one as a neutral. If Heffernan was engaged in political activity and said, I'm supporting Spagnola, of course he would be protected by the First Amendment. What I'm hearing is that if he said, I'm neutral, he would be covered; he would be protected. I see little difference between being a neutral and being agnostic in the sense that I'm not taking a position. So -- so --
Sonia Sotomayor: I'm -- I'm so totally confused. I know it's 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 that Spagnola was his friend and he supported him. So he wasn't neutral; he just wasn't engaging in associational conduct by choice. That's what I thought.
Mark Frost: That's correct, Justice Sotomayor. And the point that 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 -- but clearly he engaged in what we would consider core First Amendment activity by picking up that sign. The mistake that the employer made was actually one that they perceived him as actually campaigning on behalf of Spagnola. And that should make no difference for the simple reason that with respect to that activity, it's because the Court sees that the government is acting for an impermissible purpose, and that was the press --
John G. Roberts, Jr.: Thank you, counsel. Thank you, counsel. The case is submitted.