FAN 105.1 (First Amendment News) Court rules 6-2 in favor of 1-A Claim in Government Employee Speech Case

Today the Court handed down its ruling in Heffernan v. City of PatersonThe vote was 6-2 with Justice Stephen Breyer writing for the majority and Justice Clarence Thomas (joined by Justice Samuel Alito) writing in dissent.

Mark Frost was the counsel of record for the Petitioner (joined by Professors Stuart Banner and Eugene Volokh)

→ Victor A. Afanador was the counsel of record for the Respondents (joined by Thomas Goldstein)

Here is how Justice Breyer framed the issue in the case and its resolution:

In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution”? 42 U. S. C. §1983. We hold that it did.”

The majority, however, limited the reach of its ruling:

“We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan’s em- ployers implemented violated the Constitution. There is some evidence in the record, however, suggest- ing that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it com- plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.”

Even so, Justice Thomas took exception:

“If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, be- cause Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under §1983. I respectfully dissent.”

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule of Cases Already Argued

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Pending Petitions*

  1. POM Wonderful, LLC v. FTC
  2. Scholz v. Delp

Review Denied

  1. Cressman v. Thompson
  2. Justice v. Hosemann 
  3. Electronic Arts, Inc. v. Davis
  4. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  5. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  6. Town of Mocksville v. Hunter
  7. Miller v. Federal Election Commission
  8. Sun-Times Media, LLC v. Dahlstrom
  9. Rubin v. Padilla
  10. Hines v. Alldredge
  11. Yamada v. Snipes
  12. Center for Competitive Politics v. Harris
  13. Building Industry Association of Washington v. Utter (amicus brief)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on May 12, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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