How Un-rule-y is the First Amendment?

Posted in: Constitutional Law

Last week the Supreme Court heard oral argument in Heffernan v. City of Paterson. Police officer Jeffrey Heffernan was demoted because his supervisors believed that by holding a yard sign he was supporting the challenger in the local race for mayor. Everyone agrees that if Heffernan actually had been holding the sign in support of the mayoral challenger, the demotion would have violated his First Amendment rights (as made applicable to states and municipalities by the Fourteenth Amendment). But Heffernan was not supporting any candidate; he was merely picking up a sign to deliver it to his mother. The case presents the question whether Heffernan may invoke the protection of the First Amendment when he was not actually engaged in speech or association.

During the course of the argument, Justice Samuel Alito aptly described the case as “like a law school hypothetical.” No doubt he thereby meant to convey the oddity of the case, and perhaps its relative unimportance. Really, how often are public employees subject to adverse employment decisions based on mistaken views about their political activity? Paterson’s attorney Thomas Goldstein (who is also the founder of SCOTUSblog) told the Court that he was unable to identify any other cases like Heffernan.

As someone who makes his living by posing law school hypothetical examples, perhaps I am biased in their favor, but nonetheless, I would challenge Justice Alito’s assumption that a case is unimportant because it is unusual. A sufficiently well-crafted hypothetical can illuminate fundamental questions.

The Heffernan case poses just such a question: What is the relation between constitutional rights and forbidden government purposes?

Were Any of Heffernan’s Rights Violated?

The defendants argue that Heffernan’s rights were not violated because he was not engaged in protected political speech or association. Under some anti-discrimination statutes, they acknowledge, government action taken on the basis of an erroneous perception that a person belongs to a particular group can be actionable. However, they deny that this principle is part of the First Amendment.

The defendants also acknowledge that a government employee may not be subject to adverse employment decisions on the basis of his or her political silence. Demoting a police officer for refusing to support the incumbent mayor’s re-election bid would be just as problematic as demoting him for supporting the challenger.

However, the defendants argue, Heffernan was not taking any kind of a stand—not even one of neutrality. He was not expressing ambivalence or refusing to engage in political association. He was simply running an errand for his mother. As several justices indicated in their questioning, from Heffernan’s perspective, it is entirely fortuitous that his employer mistakenly believed him to be engaged in First Amendment-protected activity.

To use an example posed by Justice Antonin Scalia, if a government employee were fired because “his government employer thought he had committed a felony and he hadn’t,” state law might grant the employee some relief, but the federal Constitution would not be implicated. Justice Scalia stated that “there’s no constitutional right not to be fired for the wrong reason, and that’s” all that happened to Heffernan.

Justice Anthony Kennedy suggested otherwise. In questioning of Heffernan’s lawyer, he indicated that perhaps the government had violated Heffernan’s right to be free of government oversight of his political views and activities. Seizing on this suggestion, Assistant to the Solicitor General Ginger Anders, arguing on behalf of the United States as amicus curiae in support of Heffernan, averred that he “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.”

There ensued a good deal of back and forth among the lawyers and the justices over whether the prior cases recognize such a right, but the key to understanding what is at stake is to take note of the nature of the “right” Ms. Anders invoked. It is not a right that depends in any way on the content of Heffernan’s words or deeds. Rather, the right on offer is a right against certain kinds of government purposes or reasons for action.

A Bill of Rights, Not a Bill of Wrongs?

Thus, at the heart of the dispute in Heffernan is a profound question: How does the Constitution protect liberty, equality, and the other interests it shelters? The government defendants argue that, with a few exceptions, the Constitution protects individual rights; it does not simply disable government. Mr. Goldstein pithily put the point like this: “It’s called an individual right, not a government wrong.”

That’s catchy, but too simple. For one thing, some constitutional rights do seem to be about disabling the government. Consider the Fourth Amendment, which protects “[t]he right of the people” against “unreasonable searches and seizures.” No sensible system of government would protect people’s right to commit grievous crimes—such as murder, rape, and torture—even if only in private. Hence, one might think that the question of whether a search is unreasonable depends on what the searchee is doing behind closed doors. But in fact, the case law makes abundantly clear that the Fourth Amendment protects the guilty along with the innocent, because the reasonableness of a search depends on the government’s reasons for searching: Did the government have probable cause and a warrant (or did circumstances excuse the need for a warrant)? The Fourth Amendment protects an individual right not to be disadvantaged by government action taken for insufficient reason.

The Fourth Amendment is not anomalous in this regard. The Bill of Rights protects other individual rights by forbidding certain government wrongs. Consider the First Amendment itself. It provides that “Congress shall make no law . . . abridging the freedom of speech . . . .” That language focuses on what the government cannot do. Even its reference to liberty—“the freedom of speech”—is disembodied. That partly explains why there can be a First Amendment right to receive information even when the sender has no constitutional right to send it, as the Court appeared to hold in the 1965 case of Lamont v. Postmaster General. The First Amendment forbids government interference with speech itself, not with any particular speaker.

Rules and Reasons

During the oral argument in Heffernan, Justice Elena Kagan—who, in her pre-judicial career as a legal academic, championed the view that the central concern of the First Amendment is blocking government actions that aim to censor—pushed hard for the proposition that Heffernan’s own intentions are irrelevant. But Mr. Goldstein and some of Justice Kagan’s colleagues pushed back.

They sought to distinguish between two classes of cases. Where a plaintiff challenges a rule as overbroad, whether the plaintiff’s own conduct amounts to protected free speech is irrelevant. However, where the plaintiff objects to his treatment on one particular occasion but not pursuant to any rule, Mr. Goldstein and sympathetic justices said, he must allege that he was engaged in protected speech.

There is undoubtedly some support in the case law for that view, but as Justice Kagan’s questions suggested, the line between government action pursuant to a rule and government action justified by a “one-time” reason is difficult to maintain. The difficulty becomes clearest if one interrogates what it means to give a reason for an action.

Suppose that you ask your boss for a five percent raise. She tells you that you have been doing excellent work but that the company cannot afford to give any raises right now. However, you later learn that all of your co-workers received ten percent raises. You will immediately conclude that your boss lied to you about her reason for denying you a raise.

Why? Because, as University of Virginia Law Professor Frederick Schauer has written persuasively, to give a reason is to profess a commitment to the rule that underlies that reason. Reason-guided conduct simply means rule-guided conduct. Thus, if the rule that underlies a reason would be invalid, so should be the reason itself.

That is not to say that the Supreme Court necessarily will rule for Heffernan, only that it should. Many of our rights—including the right to free speech—are, as Duke Law Professor Matthew Adler has argued, “rights against rules.” If a majority of the justices want to hold otherwise and conclude that the First Amendment is “un-rule-y,” they need a very good reason for doing so.