Heffernan v. City of Paterson - Oral Argument - January 19, 2016

Heffernan v. City of Paterson

Media for Heffernan v. City of Paterson

Audio Transcription for Opinion Announcement - April 26, 2016 in Heffernan v. City of Paterson

Audio Transcription for Oral Argument - January 19, 2016 in Heffernan v. City of Paterson

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 --