FAN 106 (First Amendment News) The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Yesterday the Court handed down Heffernan v. City of PatersonIt was the 43rd First Amendment free expression opinion handed down by the Roberts Court (count includes per curiams). It was Justice Stephen Breyer’s fifth majority opinion while serving on that Court. That puts Justice Breyer tied with Justices Anthony Kennedy and Antonin Scalia, but still way behind the Chief Justice (15 majority/plurality opinions).

The Roberts Court & Government Employee Speech 

Heffernan  was the seventh case heard by the Roberts Court involving a First Amendment employee speech claim (initials = those of author of majority opinion):

  1. ™ Garcetti v. Ceballos (2006) [5-4, per AK] [government employee speech]
  2. ™ Locke v. Karass (2009) [9-0, per SB] [government employee unions]
  3. Knox v. Service Employees International Union [7-2, per SA] [government employee unions]
  4. Lane v. Franks (2014) [9-0 per SS] [government employee speech]
  5. Harris v. Quinn (2014) [5-4, per SA] [employee unions]
  6. Friedrichs v. California Teachers Association, et al  [4-4, per curiam] [employee unions]
  7. Heffernan v. City of Paterson (2016) [6-2, per SB] [government employee speech]

Note that while Chief Justice Roberts was in the majority in all of these cases, he never assigned an opinion to himself. The case was argued a month before Justice Antonin Scalia died, which means that if the Chief Justice were indeed in the majority, he probably assigned the opinion to Justice Breyer at that time. But consider in this regard what is set out below.

The Significance of a Scalia Vote?

Notably, Chief Justice Roberts voted to sustain the First Amendment claim in this government employee speech. This is significant given what he said in oral argument:

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. . . . My point is that maybe this shouldn’t be a constitutional violation if there are adequate remedies to address what may ormay not be a First Amendment issue.

This point was echoed by Justice Antonin Scalia in oral arguments: “He wasn’t associating with anybody any more than he was speaking. He was doing neither one.”

Those are notable points, ones that can be said to go to the core of the issue in the case. Justice Clarence (joined by Justice Samuel Alito) spoke to this very point in his Heffernan dissent:

Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. . . . Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, . . . he cannot allege that his employer interfered with conduct protected by the First Amendment. 

If one were to stop the jurisprudential frame there, it adds up to four votes (Roberts, Scalia, Thomas & Alito) against the First Amendment claim. But, following Justice Scalia’s death, the tally blossomed into a six votes to sustain that claim. Think of it: after oral arguments the vote may have been 5-4, with the Chief on the dissenters’ side. That means that Ginsburg would have been the senior Justice and assigned the opinion to Breyer.  Following Justice Scalia’s death the vote would have then been 5-3.

The Significance of Government Motive & the Insignificance of Individual Intention

What made Heffernan a peculiar case (“it’s like a law school hypothetical” said Justice Alito in oral arguments) is the fact that the Petitioner Jefferey Heffernan never claimed that he intended to convey any message when he delivered a campaign sign for his mother. Fate being what it was, police officer Heffernan was demoted for his perceived political activity. That is, he never sought to convey any political message and thus, he argued, it was wrong for him to be disciplined for doing so.  That point proved determinative when the case was before the Third Circuit.  There Judge Thomas Vanaskie, writing for a unanimous panel, declared:

[W]e conclude that Heffernan has failed to raise a genuine dispute of material fact on this point. Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother. Consequently, the record is insufficient to allow a jury to return a verdict in Heffernan’s favor on his claim of retaliation based on the actual exercise of his right to freedom of association.

Against that backdrop, consider what Justice Ruth Bader Ginsburg said in oral arguments in an exchange with Thomas Goldstein (one of the counsel for the Respondent City):

Justice Ginsburg: ­­I thought –­ and unlike Justice Scalia — that the thrust of the FirstAmendment is operating on government. It saysgovernment, thou shalt not ­­ thou shalt not act on thebasis of someone’s expression, speech or belief.

Mr. Goldstein: Well, essentially all of the rights, individual rights in the Constitution, otherthan the antislavery provision, requires State action.They all talk about what the government can’t do.  But the government ­­. . . 

Justice Ginsburg: Yes, so here, thegovernment 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 politicalactivity.

Mr. Goldstein:. . . 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?

Judging from the outcome in the case, the Ginsburg line of thinking won the day. Consider the following statement from Justice Breyer’s majority opinion:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitu- tionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea- son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

Motive matters. Hence (and to echo a point Justice Hans Linde made decades ago), the constitutional wrong is in the impermissible making of a law, or as in this case in the impermissible motive in government action. Or to quote from a 1981 article by Justice Linde (for whom I once clerked):

If government acts without a basis in valid law, the court need not find facts or weigh circumstances in the individual case. When a constitutional prohibition is addressed to lawmakers, as the First Amendment is, the role that it assigns to courts is the censorship of laws, not participation in government censorship of private expression.

* * Additional Commentary * * 

Campaign Finance Case Readied for en banc Hearing in DC Circuit

Yesterday, the Court of Appeals for the District of Columbia voted rendered an opinion in Holmes v. Federal Election Commission en banc.  The opinion of the Court was by Judge Raymond Randolph joined by Judge Karen Henderson, with Chief Judge Merrick Garland not participating.

Allen Dickerson (lead counsel for Appellants)

Allen Dickerson (lead counsel for Appellants)

As set out in Judge Randolph’s opinion, the law in question involves the “Federal Election Campaign Act, which prohibits people from making contributions ‘to any candidate’ for ‘any election for Federal office which, in the aggregate, exceed [$2,600].” 52 U.S.C. § 30116(a)(1)(A). The contribution limit applies ‘separately with respect to each election,’ 52 U.S.C. § 30116(a)(6), as a result of which a person may contribute $2,600 to a candidate for each ‘general, special, primary, or runoff election’ in which the candidate participates. 52 U.S.C. § 30101(1)(A). Plaintiffs believe that this “per-election” provision violates the First and Fifth Amendments.”

“In 2014, each plaintiff wanted to contribute $5,200 to a Congressional candidate during the general election campaign. Plaintiffs could not do so because that amount exceeded the $2,600 per-election limit. Neither plaintiff contributed to his or her candidate during the primary election campaign. Plaintiffs explain that they are “interested principally in supporting the ultimate nominee[s] from [their] party.”

“Plaintiffs sought a declaratory judgment that the Act’s per- election limit is unconstitutional as applied to their contributions, and an injunction forbidding the Commission from enforcing that limit.”

The District Court ruled “that no constitutional questions warrant[ed] certification [under § 30110] because the plaintiffs’ claims involve questions of settled law.”  Beyond refusing to certify Plaintiffs’ constitutional issues to the en banc court of appeals, the court granted the Federal Election Commission’s motion for summary judgment on the merits and dismissed plaintiffs’ claims.”

Writing for the Court, Judge Randolph ruled: “The district court’s decision not to certify plaintiffs’ First Amendment question and to grant summary judgment to the Commission is reversed and the case is remanded for the district court to certify that question to the court of appeals en banc.”


 Allen Dickerson argued the cause for Appellants. With him on the briefs was Tyler Martinez.

Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission, argued the cause for Appellee. With her on the brief were Daniel A. Petalas, Acting General Counsel, Kevin Deeley, Acting Associate General Counsel, and Steve N. Hajjar and Charles Kitcher, Attorneys.


Headline: “Feds May Force Universities To Violate The First Amendment”

Writing for The Daily Caller, Mary Lou Lang-Byrd noted:

“The Department of Justice’s recent interpretation of Title IX after its investigation into the University of New Mexico’s (UNM) sexual discrimination policies will require colleges and universities to violate the First Amendment, according to a free speech advocacy group.”

“The DOJ found the UNM improperly defined sexual harassment, and declared in its findings letter that sexual harassment is ‘(u)nwelcome conduct of a sexual nature” including “verbal conduct” –- “regardless of whether it causes a hostile environment or is quid pro quo.'”

“‘The Department of Justice has put universities in an impossible position: violate the Constitution or risk losing federal funding,’ said Greg Lukianoff, the Foundation for Individual Rights in Education (FIRE) president and CEO, in a statement.”

See also Joseph Cohn, New DOJ Letter Threatens Campus Speech, Warns Former OCR Attorney, FIRE, April 26, 2016

Adelson’s defamation case Argued Before Nevada Supreme Court 

Sheldon Adelson (credit: ABC News)

Sheldon Adelson (credit: ABC News)

This from Ken Ritter with the Associated Press: “Nevada’s highest court [was] asked if a political group defamed casino mogul Sheldon Adelson in 2012 with an Internet ad alleging that he used prostitution-tainted money from casinos in China to fund Republican presidential campaigns in the United States.”

“A key question during Nevada Supreme Court oral arguments . . . was whether online point-and-click hyperlinks are comparable to footnotes on a printed page — and whether they were enough to inform ad readers that Adelson denied the prostitution claim when it was made in a civil lawsuit.”

Mr. Adelson accused  the National Jewish Democratic Council and two of its executives (David Harris and Marc Stanley) of “‘assassinating’ his character by falsely claiming that he personally approved illegal activities in Macau resorts owned by Sands China Limited, a subsidiary of Las Vegas Sands.”

According to the Las Vegas Review Journal, the issue is whether an “online petition calling on former Republican presidential candidate Mitt Romney to reject Adelson’s campaign contributions was protected speech because it used a hyperlink to an Associated Press news report on a judicial proceeding. The petition attempted to link Adelson’s individual political contributions to Las Vegas Sands revenues from operations in China and cited the AP report as evidence that prostitution was tolerated at Sands’ Macau casinos.”

A federal district court dismissed the suit in 2013. Mr. Adelson then appealed the matter to the Court of Appeals for the Second Circuit rejected several of Mr. Adelson’s claims and then certified the case to the Nevada Supreme Court to consider two state-law claims.

The  Council was represented by Lee Levine. In his answering brief to the Nevada High Court, Mr. Levine offered two main defenses:

  1. “The fair report privilege’s attribution requirement is satisfied in this case,” and
  2. “The operative anti-SLAPP statute applies to speech, like the petition, ‘aimed at procuring’ an ‘electoral action, result, or outcome.”

Upcoming: New York Times’ chief counsel to speak about newspaper’s 1-A cases

This from the Yale News: “Kenneth Richieri, general counsel and executive vice president at The New York Times,will speak at Yale on Thursday, April 28 as a Poynter Fellow in Journalism. His talk, ‘Defending the Press: A Conversation with The New York Times’ Chief Counsel,’ will take place at 4 p.m. in the Pierson College Master’s House, 261 Park St. The event is free and open to the public.”

Forthcoming Books

  1. Anthony Maniscalco, Public Spaces, Marketplaces, and the Constitution: Shopping Malls and the First Amendment (State University of New York Press, July 2, 2016)
  2. Stephen Smith, First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays (University of Arkansas Press, October 1, 2016)
  3. Patricia Dooley, Freedom of Speech: Reflections in Popular Culture (Greenwood, November 30, 2016)
  4. Pat R. Scales, Defending Frequently Challenged Young Adult Books: A Handbook for Librarians and Educators (Rowman & Littlefield Publishers, September 16, 2016)

New & Forthcoming Scholarly Articles

Howard M. Wasserman, Holmes & Brennan, Alabama Law Review (2016)

  1. Marc Jonathan Blitz, Free Speech, Occupational Speech, and Psychotherapy, Hofstra Law Review (forthcoming 2016)
  2. Andrew Koppelman, Revenge Pornography and First Amendment Exceptions, Emory Law Journal (2016)
  3. Caroline Mala Corbin, Speech or Conduct: The Free Speech Claims of Wedding Vendors, Emory Law Journal (2015)
  4. Richard Delgado, Jean Stefancic, Southern Dreams and a New Theory of First Amendment Legal Realism, Emory Law Journal (2015)
  5. David S. Han, Transparency in First Amendment Doctrine, Emory Law Journal (2015)
  6. Frederick Schauer, On the Distinction Between Speech and Action, Emory Law Journal (2015)
  7. Jay Alan Sekulow, Erik M. Zimmerman, Uncertainty Is the Only Certainty: A Five-Category Test to Clarify the Unsure Boundaries Between Content-Based and Content-Neutral Restrictions on Speech, Emory Law Journal (2015)
  8. Alexander Tsesis, The Categorical Free Speech Doctrine and Contextualization, Emory Law Journal (2015)
  9. Jane Bambauer, Freedom from Thought, Emory Law Journal (2015)
  10. Derek Bambauer, Copyright = SpeechEmory Law Journal (2015)

News, Op-eds, Editorials, Blog Posts

  1. Ehsan Alam, Rejecting prior restraint: 1931 Near v. Minnesota case set important First Amendment precedent, MinnPost, April 26, 2016
  2. Brent Ferguson, Does the First Amendment Justify Corruption?, The American Prospect, April 26, 2016
  3. Oregon Bakers to Court: First Amendment Allows Us to not Celebrate Same-Sex Weddings, Breirbart, April 25, 2016
  4. Scott Bomboy, Prince, explicit music lyrics and the First Amendment, Constitution Daily, April 25, 2016
  5. Alex Zielinski, Utah Lawmaker Says Internet Porn Violates First Amendment, Think Progress, April 22, 2016
  6. Jeremy Geltzer, Chicago at center of First Amendment fights for a century, Chicago Sun Times, April 22, 2016
  7. Randy Ludlow, Editors say ability to defend First Amendment is declining, Columbus Dispatch, April 21, 2106
  8. Jennifer Stockinger, Minnesota Supreme Court to hear Little Falls woman’s First Amendment case: Robin Hensel continues her fight, The Bemidji Pioneer, April 20, 2016

Today in First Amendment History 

This from Today in Civil Liberties History: “During World War I, the Justice Department twice tried to prosecute the editors of The Masses magazine on Espionage Act charges. The Masses was one of the most important pre-war radical magazines in the country, and it immediately became a leading anti-war voice when the U.S. entered the war. The trial,, the first of the two trials, ended in a hung jury, as did the second trial in October 1918.”

“The government also attacked The Masses by banning from the mails during the war. In 1917, the Post Office had banned The Masses from the mails because of its anti-war views on July 7, 1917. The U.S. District Court overturned the ban on July 24, 1917;  but the Court of Appeals upheld the government’s ban on November 2, 1917.”

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. Pro-Football v. Blackhorse 
  2. POM Wonderful, LLC v. FTC
  3. 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.

NEXT SCHEDULED FAN POST, #107: Wednesday, May 4, 2016

LAST SCHEDULED FAN POST, #105: “FAN 105 (First Amendment News) Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech

SPECIAL EDITION OF FAN: FBI to Continue Working with Hackers to Fight Terrorism . . . & Crime?

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2 Responses

  1. Howard Wasserman says:

    I shared your initial assessment of the argument, especially the line of questions from Roberts and Scalia. One small correction to your recreation of the Court’s change–On the original line-up as you have it, Ginsburg would have assigned the opinion.

  2. Joe says:

    Did RBG ever assign an opinion with Roberts, Thomas, Kennedy and Scalia in dissent?

    Liberals and Alito … some match-up!