Supreme Court justices appeared divided Tuesday during oral arguments on the question of whether a government entity can retaliate against a public employee because it believes that employee supports a certain political candidate.
The case heard by the high court was Heffernan v. City of Paterson, New Jersey, a case in which Paterson demoted a police detective because that detective was seen picking up a political sign. The detective says he was picking up the sign on behalf of his mother, but not was publicly supporting the candidate himself.
The event was seen as political, as the detective's superiors are Republicans, and the sign he was picking up was for a Democratic candidate for office.
During oral arguments, Justice Antonin Scalia seemed more sympathetic to Paterson, and said the Constitution doesn't necessarily have to provide protection for employees in certain circumstances.
"There's no constitutional right not to be fired for the wrong reason," Scalia stated. On whether the employee's right to free speech may have been violated, Scalia added that, "The First Amendment does not focus on the government, it focuses on the citizen."
The city of Paterson seemed to agree. "The Constitution does not fix everything," said Tom Goldstein, the lawyer who represented the city. He argued that the employee has options for relief outside the First Amendment right of association, including state collective bargaining agreements.
But Justices Stephen Breyer, Elena Kagan, and Ruth Bader Ginsberg — members of the liberal bloc — seemed more sympathetic to the employee.
Justice Breyer spoke repeatedly of the "chilling effect" of allowing the kind of punishment in this case could have on the exercise of First Amendment rights. A case like this could spook others and make public employees gun shy about being involved at all in the political process.
Justice Kagan also seemed to argue that allowing Paterson to prevail would be in direct conflict with the underlying purpose of the First Amendment. "He engaged in core First Amendment activity," Kagan said.
The employee's lawyers argue that the First Amendment's purpose was to prevent government from acting with improper motives, citing an article Kagan wrote when she was a professor.
The Department of Justice filed an amicus brief on behalf of the employee in this case, and is serving as his co-counsel.