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Supreme Court Protects Unspoken Free Speech

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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Congratulations! At long last, the Supreme Court has made it clear that the government can’t punish you for exercising free-speech rights without speaking.

In a decision that should count as a blow for constitutional common sense, the court held that the government’s motive in attempting to suppress free speech is what matters, not whether a "speaker" actually said anything.

You might think that the case is absurd and the result obvious. But it’s not. Two lower courts and two Supreme Court justices thought otherwise. And the court didn’t go far enough to protect against government efforts to control people’s political beliefs.

The facts of Heffernan v. City of Paterson would make a good law school exam. Jeffrey Heffernan, a Paterson, NJ detective doing an errand for his mother in 2006, picked up a sign advertising a candidate for mayor. Word got back to the police chief, who supported another mayoral candidate. The next day Heffernan was demoted to beat cop. He sued, alleging that he was being unlawfully sanctioned on the basis of the police chief’s belief that he was exercising his constitutionally protected right to political speech.

The twist was that Heffernan wasn’t actually campaigning for the candidate. He was just helping out his bedridden mom. That led a federal district court and the U.S. Court of Appeals for the Third Circuit to dismiss his claim before trial. They reasoned that the First Amendment protects the actual exercise of a right, not a perceived exercise.

I consider that argument pretty poor. The First Amendment says that Congress may not abridge the freedom of speech. It’s directed at what the government may not do, not at whether somebody is actually doing it. Writing for the majority of six, Justice Stephen Breyer did note that the court’s holding “tracks the language of the First Amendment more closely than would a contrary rule.” (Justices Clarence Thomas and Samuel Alito dissented.)

But most of Breyer’s opinion focused on the question of what the government believed. He relied on a 1994 case called Waters v. Churchill, in which the court ruled that a government employer could dismiss an employee based on an honest mistake of thinking that the employee’s speech was private gossip (which is not protected by the First Amendment) rather than public-affairs discussion (which is). In other words, it’s the motive that counts.

Breyer then argued that if the government’s motive could defeat a lawsuit for the exercise of free-speech rights, then the government’s motive should count to allow such a suit to go forward. “After all,” he wrote, “in the law, what is sauce for the goose is normally sauce for the gander.”

Breyer’s argument is clever but it rests on the mistaken belief that the Waters case was correctly decided, which it wasn’t. The dissent in that case, by Justice John Paul Stevens, said that an employee should be able to get to a jury to consider whether her free-speech rights were violated even if the government didn’t mean to violate them.

In the Heffernan case, Breyer made a better argument, as well. He pointed out that one cost when the government suppresses an employee’s free speech is that it chills the speech of other employees. That pragmatic concern, he said correctly, applies with equal force when the government punishes someone who hasn’t actually spoken.

But the principle doesn’t go far enough. When the government mistakenly punishes actual speech, as it did in the Waters case, that may also chill the speech of other employees.

The best thing would have been for the court to clarify that motive shouldn’t be the issue. If the government has suppressed free speech, as in the Waters case, that should be barred by the Constitution. If the government has punished you for free speech even if you didn’t speak, like Heffernan, that should be protected, too.

A final twist: Heffernan’s demotion could still stick. Breyer said that a jury now has to decide whether the detective was punished for violating a neutral rule that prohibits police officers from overt involvement in political campaigns. In that event, First Amendment rights don’t apply. Either way, Heffernan’s name will stay in the legal record as a symbol of a partial victory that should have gone further.

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:
Jonathan Landman at jlandman4@bloomberg.net