Anurag Rakshit

Yuan Tian

ar3891@nyu.edu

yt889@nyu.edu

In the Supreme Court of the United States

Debate Report for the Respondents
in Opposition

JEFFREY J. HEFFERNAN
V.
CITY OF PATERSON, MAYOR JOSE TORRES, POLICE CHIEF JAMES WITTIG, and
POLICE DIRECTOR MICHAEL WALKER

Question Presented: May a public employee prevail on a retaliation claim under 42 U.S.C.
Section 1983 for a deprivation of his First Amendment right to freedom of political association
even though he has not in fact exercised that First Amendment right?

We, the Respondents of this case, would like to argue against the stance of the Petitioner
before this court and are of the belief that this court should reaffirm the 3rd Circuit Courts
decision that clearly observed in its own binding precedent, as well as precedent from every
other circuit to consider the issue, and held that a free-speech retaliation claim is actionable
under 1983 only where the adverse action at issue was prompted by an employees actual,
rather than perceived, exercise of constitutional rights.
Our argument is based on a four-prong approach as follows:
(i) There is no direct conflict in the courts of appeals.

The Petitioner asserts that there is a direct conflict between the decision of the Third
Circuit Court of Appeals and the decisions of Dye v. Office of the Racing Commn, 702 F.3d 286
(6th Cir. 2012); Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008); and Gann v. Cline, 519 F.3d 1090
(10th Cir. 2008) from the Court of Appeals of the First, Sixth, and Tenth Circuits respectively.
On the contrary, we believe that the Third Circuits ruling is in accord with the decision in these
cases as well as its own precedent. In both Gann and Welch, the public employer took retaliatory
action against employees who failed to support the employers preferred candidate or party.
Political neutrality was not enough for those employers. As a result, employees who exercised
their First Amendment rights to be neutral and to not associate with a political candidate or party
suffered for their exercise of those rights. Nor is there a direct conflict between the decision of
the Third Circuit and Dye, where the Court of Appeals for the Sixth Circuit in Dye decided to
adopt the reasoning of the First and Tenth Circuits as in both Welch as well as Gann where a
First Amendment right was actually exercised .
II.

The conflict in approach is undeveloped.

The courts of appeals have barely addressed some issues brought up in this case. While

some language in Dye can be read to sweep more broadly to suggest that an employee should be
able to recover under a Section 1983 First Amendment freedom of association claim even where
the employee has not exercised that First Amendment right, the Court of Appeals for the Third
Circuit has distinguished between cases where a public employer retaliates against an employee
because of his exercise of the First Amendment right to not associate and cases that do not
involve the employees exercise of the First Amendment right of association at all. But no other
court of appeals, has considered that distinction. We therefore believe that it is premature for this

Court to resolve the correctness of that distinction until at least one other court of appeals
considers and rejects the distinction. Before conclusively resolving that issue, this Court would
benefit from the views of multiple courts of appeals.
III.

This case is a poor vehicle.

This particular case is a poor vehicle for considering the question presented, in fact the

facts support upholding the Third Court ruling. Procedurally, this case has been called
complicated and highly unusual by the court of appeals and tortuous by the third district
judge to hear it. More significantly, the issue presented to this Court was effectively injected into
the case by a district judge who later concluded that he should never have been hearing the case
in the first place. the case by a district judge who later concluded that he should never have been
hearing the case in the first place. The district judge then acknowledged that the defendants
seem to have a valid procedural point in objecting to its consideration before concluding there
was no freedom of speech issue. This therefore demonstrates that the Third circuit resolved the
matter.
IV.

The court of appeals was correct.

The Court of Appeals for the Third Circuit properly decided this matter. The holding of

the court of appeals was straightforward and correct: an employee cannot recover under Section
1983 on the theory that he was retaliated against for exercising a First Amendment right if he did
not in fact exercise a First Amendment right. Every court of appeals to consider this question in
the context of the First Amendment right to freedom of speech has reached this same
straightforward and correct conclusion, and there is no reason to think that a different result
should follow in the context of the First Amendment right to freedom of association. The

traditional view, reflected in Justice Holmes famous statement that a policeman may have a
constitutional right to talk politics, but he has no constitutional right to be a policeman,
McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892), was rooted in the
distinction between a right and a privilege. This gave way to an understanding that imposing a
burden on someone for exercising a right even by taking away something to which the person
had no right, such as a public benefit or public employment operates as a deprivation of that
right equivalent to imposing a penalty for exercising that right. Clearly then, the theory of First
Amendment retaliation claims would imply that an employee that has been deprived of their First
Amendment right only if they have been penalized for their exercise of that right. If there was
in fact no exercise of any such right, it is impossible to say that the employee was retaliated
against for exercising their First Amendment rights.
We acknowledge that the Petitioners may refer to Garcetti v. Ceballos, 547 U.S. 410
(2006) where a public employee was retaliated against for their actions at work. The Petitioner
may point out that this retaliation would not have taken place if the incident had taken place
outside of the workplace, however, this only highlights the fallacy raised by the Respondents
which is, as we have constantly repeated above, that since Heffernan has claimed to have not
exercise his First Amendment right, he is not entitled to that protection by the constitution.
Based on above statements, the Petitioners may rebut on the following arguments.
I.

An early case distinguished the different standard for free-speech and free-association

claim.
In the Racing Commn, 702 F.3d 286 (6th Cir. 2012) case, the employees denied any
affiliation with the Republican Party but alleged that they were retaliated against on the basis of

perceived political affiliation. The Court rejected to adopt the same standard for free-speech
retaliation, and concluded that the critical inquiry is the employers motivation and that actual
affiliation is not necessary.
II.

Ruling in favor of the Respondents would severely limit the scope of protection of the

First Amendment.
Ruling in favor of the Respondents would put millions of government employees under
the constant fear of being retaliated, because their employers would have great power to demote
or terminate them on the basis of misperception of ones political affiliation. The employers are
free to do so as long as there is no such right exercised.
We would clarify and further our arguments on the following four points.
I.

The question relevant here is only the free-association claim.

The only question raised in this court is whether the plaintiff can make a free-association

retaliation claim based only on his employers perception that he exercised the right. The
Petitioners free-speech claim has been rejected in the Third Circuit Court of Appeals because of
the absence of actual exercise of his free-speech rights. We have asserted that his free-association
right would be protected under the First Amendment if there was any involved in this case. But
the Petitioner himself denied any affiliation. As a result, there should be no First Amendment
protection.
II.

The employee must show actual exercise of free-association right before proceeding to

consider the employers perception.

We agree with the Petitioner that an employers perception of the employees protected
action as well as his or her motivation of an adverse employment decision based on the

perception matter in a free-speech or free-association claim. But we disagree that this should be
the only consideration of the court. The premise should be that there is actual exercise of those
rights. Whether there exists actual exercise of those rights distinguishes our case from a list of
precedents. It is true that there is substantial discussion over the perception of the employer in
the Waters v. Churchill , 511 U.S. 661 (1994). We must notice that the court first found that the
employee exercised the free-speech rights. The disputes were over what the employer was told,
what he perceived and what the employee said in fact. The employer alleged that he was
motivated by the unprotected piece of speech he was told instead of the protected piece that the
employee claimed was actually said. There, the ruling depended on whether the employer was
motivated by the protected piece of speech or the unprotected piece. In the precedents, Welch v.
Ciampa and Gann v. Cline, there is also no dispute that the employees clearly stated that they
were actually exercising their protected rights not to affiliate. Later, the Dye Court also adopted
the reasoning in Welch and Gann. Petitioners also mentioned the case Branti v. Finkel, 445 U.S.
507 (1980), where the Court concluded that punishments solely based on their politicalaffiliation, unless the hiring party can demonstrate that political affiliation is a requirement for
that position is violation of constitution. Again, that case is a huge deviation from our case in
that the employee also clearly stated his exercise of freedom of association.
Then, we must look into the cases where there is no actual exercise of free-association
rights as our case. In Good v. Bd. Of Cnty. Commrs, 331 F. Supp. 2d 1315 (D. Kan. 2004), the
District Court found no actual exercise of the plaintiff. The Court ruled in favor of the defendants
because of the absence of any allegation that plaintiff was deprived of any association protected
by the First Amendment. The Court stated that we could not find that a reasonable government

actor would know that the First Amendment right to association extends to "perceived"
association.
III.

The fundamental freedom of association would not be threatened.

We are not asking the court to put limitations on the First Amendment rights, but only

asking to draw a clearer line for the scope of those rights. The line should be clear: when there is
actual exercise of free-association right, the action should be protected by the First Amendment
right. The Petitioners argued as if the citizens First Amendment rights would be vacated or
seriously weakened if the court ruled in favor of the Respondents. However, as long as they state
their exercise of those rights, all employees will be safeguarded and immune from any retaliation
based on their protected rights. Consider the similar free-speech right. In Shelton v. Tucker, 364
U.S. 479 (1960), the court described the right of free association as a right closely allied to
freedom of speech. Given the similar nature of the two rights, no court of appeals has found a
basis for drawing such a distinction between the two kinds of First Amendment employment
retaliation claims. The standard of free-speech claim has been well-established. In Fogarty v.
Boles, 121 F.3d 886, 888 (3d Cir. 1997), the third Circuit clearly stated that actual exercise of
freedom of speech is required in a free-speech retaliation claim. The rule has been applied
consistently for years. If the requirement of actual exercise of free-speech right is not considered
to threaten our fundamental right, it is unreasonable to worry or believe that the similar test
imposed on a similar claim should weaken our right of freedom of association.
IV.

We must consider the issue in the context of a workplace.

We are discussing the issue of free-association right in the context of a workplace and the

individual seeking protection as a government employee. If the employee had actually exercised

his free-association right in, it would have undoubtedly raised a First Amendment claim. The key
consideration of the court would be to protect the fundamental right of the employees as any
other citizen. However, when there is no actual exercise of free-association right like in our case,
it raises a usual workplace issue. We must agree that the role of the government as an employer
differs from its role as a sovereign. The key consideration of an employer should be the
workplace efficiency, which allows the government more power over individuals as its
employees. In Waters v. Churchill, the Court concluded that the government employees are
subject to certain restrictions on their free-speech rights in workplace for efficiency concern. We
must agree that it should be the same case for free-association rights, as ones political position
has deep influence on ones daily action that may have the same or even more effect on
workplace regulation.
This case arouses great business and societal concern. The rule strikes a balance between
the public concern of the First Amendment rights and the employers administrative concern of
control over workplace. Government employees right of free-association is well protected. If
there exists actual exercise of the right, the First Amendment will provide a shield from
retaliation. At the same time, the rule grants the government as an employer necessary control
over its employees. We emphasize the statement in Waters that the government acting as an
employer has more power over individuals as employees. This does not mean that the
fundamental First Amendment rights are not valued in the context of workplace. However, First
Amendment should not step in excessively far or often. The employer is allowed to regulate the
workplace and make any employment decision for the sake efficiency as long as there is no
violation of laws.

Case References:
Branti v. Finkel, 445 U.S. 507 (1980)
The employee claimed that he was terminated merely because he was a member of the
Republican Party. The Court held that it was appropriate for the district court to enter an
injunction against termination of the assistants' employment on purely political grounds.
Punishments solely based on their political-affiliation, unless the hiring party can demonstrate
that political affiliation is a requirement for that position, is a violation of constitution.
Dye v. Office of the Racing Commn, 702 F.3d 286 (6th Cir. 2012)
The employees denied any affiliation with the Republican Party but alleged that they were
retaliated against on the basis of perceived political affiliation. The Court rejected to adopt the
same standard for free-speech retaliation, and concluded that the critical inquiry is the
employers motivation and that actual affiliation is not necessary.
Fogarty v. Boles, 121 F.3d 886, 888 (3rd Cir. 1997)
A public school teacher asserts that he was punished because of the principal's belief that he had
called the press about a matter of public interest at the school. The Court concluded that the
plaintiff failed to prove that he was engaged in protected free-speech when he denies contacting,
attempting to contact, or having any intention of contacting the press. Because of the absence of
protected speech, the Court affirmed the grant of summary judgment in favor of the principal.
Good v. Bd. of Cnty. Commrs, 331 F.Supp. 2d 1315 (D. Kan. 2004)
The plaintiff asserted that he did not associate with a third person but was retaliated and
terminated based on the employers perception that he was associating with that person. Because
of the absence of any allegation that plaintiff was deprived of any association protected by the

First Amendment and also the absence of any evidence that the defendant had the perception, the
Court granted summary judgment for the defendants.
Shelton v. Tucker, 364 U.S. 479 (1960)
An Arkansas statute compels every teacher, as a condition of employment in a state-supported
school or college, to file annually an affidavit listing without limitation every organization to
which he has belonged or regularly contributed within the preceding five years. At issue in these
two cases is the validity of that statute under the Fourteenth Amendment to the Constitution. The
statute's comprehensive interference with associational freedom goes far beyond what might be
justified in the exercise of the State's legitimate inquiry into the fitness and competency of its
teachers. The Court ruled in favor of the teachers.
Waters v. Churchill, 511 US 661 (1994)
A public hospital fired a nurse, Churchill, for her insubordination in the workplace when she was
found to have been bickering about one of her superiors to one of the trainee nurses. Churchill
claimed that her firing in fact took place due to her opposition to Hospital policies. The court
ruled that her firing was in tandem with First Amendment protection because if an employees
speech or actions cause disruption in the workplace, they may not be protected by their First
Amendment right to speech.
Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008)
Welch was promoted to the position of detective sergeant, which is the highest position in that
police department, by the police sergeant who has the sole discretion of renewing the tenure of
all special positions that included the title of detective sergeant. A board of selectmen decided to
relieve Cachopa of his duties as the Police Chief and Cachopa subsequently carried out campaign

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to get his position back with the support of many of his subordinates. Welch did not support this
campaign. After Cachopa was reinstated, he retaliated against Welch in form of harassment and
removing Welch from his detective sergeant position. Cachopa sued claiming that this was a
violation of his First Amendment right to associate or rather, not associate in this case. The court
ruled in favor of Welch claiming that the freedom not to support a candidate or cause is integral
to the freedom of association and freedom of political expression that are protected by the First
Amendment.
Gann v. Cline, 519 F.3d. 1090, 1092 (10th Cir. 2008)
Ms. Gann was hired by the Oklahoma County Commissioners office and did not support her
supervisors campaign. She was later replaced by her superior who claimed to have punished
her for her political patronage. Gann sued claiming that her job did not require political
patronage, her boss rebutted by claiming qualified immunity. The court ruled that Ganns boss
unlawfully removed her.

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