Is that an approved Paterson sign?

Photographer: Chris Hondros/Getty Images

Your Freedom Not to Speak Is Protected Too

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Is the freedom of speech a right to speak? Or is it a right not to be punished by the government for what it thinks you’re saying? The difference may sound academic, but it isn’t for police officer Jeffrey Heffernan of Paterson, New Jersey, whose case was argued Tuesday before the U.S. Supreme Court.

Heffernan was demoted after he was seen picking up a mayoral candidate’s campaign sign. The retaliation by his bosses, who supported the incumbent, was intended to violate Heffernan’s freedom of speech, which entitles him to political activity.

But it turned out that Heffernan wasn’t trying to give his opinion about the campaign. He was just being a good son, picking up the sign for his mother. On this basis, the U.S. Court of Appeals for the 3rd Circuit threw out Heffernan’s claim that his rights were violated by his demotion.

If your reaction to this scenario is, “Huh?” I’m with you. The text of the First Amendment says that Congress shall make no law abridging the freedom of speech. On its face, that language says nothing about whether I’m actually speaking. It only says the government may not prohibit me from doing so.

The Paterson police bosses intended to abridge Heffernan’s speech. It’s common sense that their action was prohibited by the First Amendment -- even if Heffernan didn’t mean to speak in the first place.

Imagine that the police are unconstitutionally arresting demonstrators, and accidentally arrest a passer-by. Is it plausible to think that the demonstrators have a claim against the government for false arrest, while the passer-by doesn’t? To me, the answer is certainly no.

Remarkably, many of the justices in oral argument didn’t seem to see the issue that way at all. Therein lies a tale of how law school can rot your brain, or least occlude your common sense.

Chief Justice John Roberts put it bluntly to Heffernan’s lawyer. The officer “wasn’t engaging in speech at all,” said the chief, so “I’m not sure how he can say his freedom of speech has been abridged.” Justice Antonin Scalia piled it on: Heffernan “was not expressing any First Amendment view whatever. I mean, he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.”

Roberts said he thought Heffernan should have some nonconstitutional remedy for his demotion, because his constitutional rights hadn’t been violated. And Roberts had a hypothetical of his own: Suppose a government employer fired someone for picking up a political sign, but the person defended himself on the grounds that he was never there at all, and someone else had picked up the sign. Roberts wanted Heffernan’s lawyer to say this wasn’t a free-speech defense at all, but based on a “mistake of fact.”

Fortunately, the lawyer held ground and said such a mistaken firing would still violate a government employee’s free speech. And he’s right, because the First Amendment prohibits the government from doing something -- punishing speech -- which it intended to do in the hypothetical.

So why were Roberts, Scalia and Samuel Alito, who also chimed in, so apparently sympathetic to the notion that free speech is only protected if you’re actually speaking?

The answer, I think, is that U.S. lawyers are trained to think of constitutional rights as inherent to individuals. This idea goes back before the Constitution, to the old English common law of property. Property rights are imagined as things that belong to individuals, and can be transferred from one person to another much like actual, physical things.

Extending this common-law logic to constitutional rights would seem to yield, by analogy, the idea that my free-speech right is simply my right to speak -- the same way my property rights may include the right to go onto my land and use it as I wish. Thus, if I’m not speaking, as Heffernan wasn’t, the free-speech clause of the Constitution would seem not to be in play.

Yet the analogy is thoroughly misleading when it comes to prohibitions on government action. Sure, I have a right to speak. But the government has an independent responsibility not to take actions intended to suppress speech.

It’s no defense for the government to say that while it tried to suppress speech, it failed to do so because the intended target wasn’t really speaking. The Constitution, properly interpreted, prohibits the government’s attempt to abridge speech, not just the successful accomplishment of the goal.

All is not lost. The office of the solicitor general took the common-sense position. And Justice Elena Kagan focused directly on the government’s “impermissible purpose.” The court may still avoid embarrassing itself with excessive legalism applied to free speech. But even if the right outcome is reached, I anticipate an opinion (ideally, a dissent) that’s a masterpiece of legal hairsplitting. Keep an eye out for it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net