you are going to allow somebody to come in and fire people one at a time. >> justice kagan, that's, of course, not what i'm saying. what i'm saying is that under first amendment overbreadth doctrine, when you have a general policy, and this is what we think happened in elrod and branty, the fact that you do not inquire into the individual person's political views because the policy is facially unconstitutional. but it has never been the case in any context, and the other side is that every opportunity in the world, we cannot find any first amendment case that says you know what? you don't have to engage in constitutionally protected activity so long as the government thinks you did. and it's really a problem if that's the rule. because it is the threshold thing that stops plaintiffs with meritless cases from getting out of the box. in all of these cases, if the plaintiff no longer has to say, i engage -- >> but you're saying -- and i think you said this straight out -- you're saying, i can come into an office, i'm a democrat, i can identify every person

without the well-known political view, every couch potato out there, just fire one after another after another after another, replace them all with democrats. change the entire character of the office. do it for a reason that i prefer one political view to any other and that that will not be a violation of the first amendment. >> that will -- two things. first, i think it is practically impossible because you would have to somehow magically pluck out the people who are politically apathetic from those that are politically neutral. i just don't think you can do it. but the second is, that's right. the constitution doesn't fix everything. >> you want this court to hold that the government of the united states has a right to ascribe to a citizen views that he or she does not hold? >> justice kennedy, i think that that is not a first amendment violation. i don't think the other side thinks it's a first amendment violation. remember, there's the materiality requirement? >> see, i had always thought that the first amendment, running through all our cases, is an extremely strong strand

that part of the reason we have these protections is because we worry that government is doing things for impermissible reasons. that the government wants to create a world of speech in which everybody agrees with it, and nobody opposes it. and that that's a fundamental tenet of what the first amendment and all our cases are about. and you're saying oh, no, the government's motive doesn't really matter. as long as you can't point to somebody who is holding up a sign. >> justice kagan, i think you are roight. the court has said that it is a necessary but not sufficient condition. waters makes very clear, which is a first amendment, public employee case that the individual has to have engaged in the constitutionally protected activity. every one of -- garcetti says the same thing. you have to have an individual -- >> may i just approach the same thing from a different perspective. suppose can congress pass a law or a legislature pass a law that

attempts to abridge the freedom of speech. is that a violation of the first amendment? it's an attempt. what would the attempt -- i'm not -- >> well, they say examples. they pass a law, no one can espouse in a public place the political philosophy of ruritanianism. substitute anything you want for that. they pass it. and by the way, the six people who hold that philosophy all leave on a boat before the effective date. but -- or what's more likely, they bring a declaratory judgment action and it never takes effect. and therefore it had no impact. and that happens every day of the week. i'm just wondering if such a law, which is an attempt, it's

right on the books as blatant as you want, whether that violates the first amendment. that's a serious question. i'm not taking a point of view. i want to know what you think. >> justice breyer, the reason that we allow -- >> i just want to know, is it yes or no? in your opinion, does it account to a clear attempt to violate the first amendment in a statute that has general application, does it violate the first amendment? does it abridge the freedom of speech? >> if it's only going to be an attempt and it's not going to succeed, no. the statute you describe is unconstitutional. >> it is unconstitutional. >> that's right. there are all kinds of times -- >> it will have a lot of bad effects, all kinds of chilling effects all over the place. >> if it's defined as not going to succeed -- if the statute doesn't -- >> no, by chance, it happens not to succeed. >> no, justice breyer -- >> in my hypothetical. >> i know. i'm just trying to keep up with it. in the one that you just described, justice breyer, if it is the case that the law is going to go into effect, we do allow, including under first

amendment overbreadth grounds, an effort to bring a declaratory amendment action. >> if, in fact, they want it to succeed, that's why they passed it, and through a fluke, it fails. is the fact that it fails mean that it doesn't violate, it doesn't -- does it not -- does it or does it not violate the first amendment? >> it doesn't. >> it does not. >> and here would be an example. >> okay. >> if i could just finish, justice breyer. i really do want to help. if congress at the same time passed a law that said no federal funds shall be used to implement the ban on talking about the political views of r ruritania, we tried, but the money was taken away from us, it's not unconstitutional. >> or you could say that the law is passed by congress but vetoed by the president. is there a violation of the constitution? >> there would not be. but in my hypothetical, or in justice breyer's where it actually goes into effect -- >> we're off on a tangent because there's no injury.

in this situation when the law doesn't go into effect. but coming back to what justice breyer, i believe, is attempting to say, i don't know, mr. goldstein, that i understand either, and i think justice kagan asked you this. why does it matter, and we don't care whether someone is a republican or not in elrod and branty and those cases. and you say it's only because it's a policy. the intent of the government is to say i'm not going to promote anybody who is not a democrat or not a republican. >> more than a policy. it will actually have adverse consequences for someone exercising their constitutional right. >> they've gone along and not promoted people. all right? so you have to have someone come in and say, i'm not a democrat?

i'm not a republican? or you need someone to tell you what they are? >> no, no. common sense does not leave the courthouse, and that is if i have a policy that says i will not hire democrats, i think a court would understand that there are going to be democrats who would apply for job. and there doesn't they'd to be an inquiry. >> so, then, why isn't it simple to say, i'm not hiring you, or i'm demoting you because you politically associate? and doesn't that shield the person from even walking by a campaign? doesn't it shield others who do want to associate marginally? i'm assuming that there's no policy in place or that there's no -- nothing to prevent this otherwise like the hatch act. >> i think it's a really important point on the question of chilling because elrod and branty and the rules that also -- and o'hare, which is a one-off case -- do say that you can't do this for political

purposes if the person is actually exercising a constitutional right. so that we all agree that if the plaintiff here was a supporter of spagnola or even if the mayor had decided to remain politically neutral, this is a bizarre case that comes to you on the assumption that he is completely politically apathetic. >> it is bizarre. do you really believe, mr. goldstein, that the constitution does not solve all problems? you made a statement to that effect. you really believe that? >> no, but -- >> it doesn't solve every problem. >> no, but i do think that there is a concern that comes into play. so i do not mean to demean the concern about the government having a sense of what individuals' political views are. but i'm saying that that happens, your honors, in all kinds of cases, redistricting, campaign finance. there's lots we do to ascribe political views to people in this country. and adopting that doctrine is going to have pretty widespread consequences when it's not necessary.

i do think that it should be common ground that there are multiple players of protections for these employees. the basic rule -- and justice kennedy, remember, under the basic rule, the plaintiff has always come in and said i'm a democrat. right? the elrod branty rule when it's involved one-off cases. the opinion in o'hare has never been regarded as a first amendment problem when you don't actually exercise any first amendment rights. >> that is a first amendment problem for the reason that lots of other people will have their speech chilled. and normally in the law, there is a doctrine where the person who does the bad thing makes a mistake. he's held anyway. that's true of transferred intent. you shoot "a," but you meant to shoot "b." it's true of attempts, generally. >> it's not the constitution. >> why not? that is to say i would think that a statute that has a chilling effect on the speech of

millions of people but is directly aimed at a, b and c, if because of some fluke a, b and c are not themselves injured, nonetheless everybody else is and it would still violate the first amendment. that, i think, is what you have here, which is why i raised my point. >> great, justice breyer. and if you would just contrast in your own mind the statute that affects millions of people versus the beat cop who talks to one person in terms of its chilling effect, because first amendment overbreadth doctrine was born because of your hypothetical. the concern that a broad policy or statute will have widespread effects, that is not anything like this. we have a -- >> do you know of any case in which we have relied on chilling effect where what was at issue was a one-off like this one? as opposed to a general policy which had a chilling effect? i don't know of any case. >> to the contrary, i can tell you that in both waters and

garcetti versus sab ios, the court said, look, we recognize the rule that's being proposed to us. so in waters, it was the idea that the public -- the employers' views wouldn't matter. it would just be whether the speech was protected. in garcetti, it was the question of whether it was the public employer speech. and the public employees' argument in both those cases are that, look, these rules are going to chill speech because they are of uncertain boundaries. w we need to have wide-ranging expression. there will be inquiries into my speech views, and the court said we just have to balance things here. there is a real concern that is rooted in a history of the united states involving political patronage. the court has never tried to extinguish politics from local government. and if you try to do that in new jersey, we are going to be here a lot. >> the question in this case seems to me to be highly artificial. it's like a law school hypothetical. >> i agree. >> how often will it be the case

that an employee will be unable to allege any expression or any association that is protected by the first amendment? it seems to me quite rare, and it may be that this case comes to us the way it does because the plaintiff was dealing with two things. one was the first amendment, and the other -- i mean, one was the issue -- the question of his motivation. and the other was this alleged policy prohibiting any kind of political activity. even in the person who's just apathetic, is there not a first amendment right to be -- say i don't like politics? i don't want anything to do with politics? i'm not going to register. i'm not going to vote? >> justice alito, the third circuit has a rule discussed in a brief adopted in a case called galley that says you do have the right to be politically apathetic. the reason the case is so bizarre is that the other side, for its own reasons, decided not to assert that right. now, i will say that it does,

nonetheless, matter. because there will be other kinds of cases where you have a public employee that is not asserting any rights at all and does not involve, say, environmentalism or gun rights or whatever. and the public employer, if it's thought just to have perceived the employee as having been involved in some association, then is subject to a claim. >> sorry, you have to -- you have to show some facts to draw that inference. and you just can't say, i'm involved in this, and the employer fired me because of that. you have to show some connection between the firing and -- >> his support of spagnola is discussed in the chief's office, right, and then he has to be reassigned. and the chief has to really worry that he's going to be sued. that my point is this. the set of cases that you have to be concerned with, there have been no other cases where they've been able to identify like this one is very small.

but the down side risk is significant. >> if somebody had come into me before today's argument and just said, does the first amendment prevent the government from punishing the person because that person does not share the government's views? i would have said yes, of course, the first amendment protects that. that's the whole point of the first amendment. and now you're telling me no, the first amendment does not prevent the government from punishing a person because that person doesn't share the government's views unless that person is actively opposed to the government's views. but if that person just really could not care less, which a lot of people in this country could not care less. they don't vote. they don't pay attention. they wouldn't know who was running. but the government can punish that person because that person doesn't share the government's views. and i would have said, that is one strange doctrine. >> it may be that i have not persuaded you in this case. i will say, justice kagan, what you ask is can the government do

it? the government cannot because there are lots of other protections. and remember, if the person is politically neutral, it is the case that the right of political association is the right of political association. if you aren't engaging in it, you aren't actively pursuing the right and any right, or even if you aren't active about it. >> thank you, counsel. mr. frost, you have a minute left. >> thank you, mr. chief justice. a couple points that i want to make. with respect to declaring one as a neutral, if heffernan was engaged in political activity and said i'm supporting spagnola, of course you would be protected by the first amendment. what i'm hearing is that if he said i'm neutral, he would be protected. i see little difference between being neutral and being agnostic in the sense that i'm not taking a position. so -- >> i am so totally confused. i know it was way it was presented to us, but i thought

he testified that he had made a choice not to get involved in the campaign, but that spagnola was his friend, and he supported him. so he wasn't few tral. neutral. he just want engaging in associational conduct by choice. that's what i thought. >> that's correct, justice sotomayor. and the point that i was trying to make was the fact that in this case, he was not going to be exercising his right to vote or campaign for him, but clearly, he engaged in what we would consider core first amendment activity by picking up that sign, the mistake that the employer made was actually one that they perceived him as actually campaigning on behalf of spagnola, and that should make no difference for the simple reason that with respect to that activity, it's because the court sees that the gorn