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Wednesday, January 20, 2016

Individual right or government wrong?

I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument. 

It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech

Posted by Howard Wasserman on January 20, 2016 at 07:37 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


Not a First Amendment scholar, but I am really a bit shocked at how the justices --- especially the textualists --- are focusing on narrow doctrinal issues that are not part of the core text of the First Amendment.

The amendment does not say Congress shall make no law retaliating against the people for exercising the freedom of speech.

The amendment prohibits the government from abridging the freedom of speech. The government plainly abridged this guy's freedom of speech -- in fact, the government action here plainly abridged the freedom of speech of a lot of people.

So I don't see this as a question of wrong; but there are perhaps questions of standing and remedy.

Posted by: Toby | Jan 20, 2016 8:59:27 AM

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