thanks, guys. >> victoria? >> yeah, i got it. senator.you, >> please. >> we are certainly going to try. dr. rand paul: he is a family doctor down there. dallas supporters in the area. funeral. here for a the whole family said the candidate is here. my brother-in-law ran over to get a picture.

the revolution of technology is going on now. wondering, do you have any vocal support? dr. rand paul: i think it is a minute a lot of american needs to understand. there is a 1000 year war between the suni and the shia. it is the same thing. the sunni dominates the minority. they persecute the minority. yourultimately -- to figure at the sunni-shia

divide. we have to defend ourselves. when he to make sure that us going in doesn't work very well. [indiscernible] >> ok. [indiscernible] ao woman who: might be on the staff.

ok. -- the you will consider you have any questions? >> i don't. the public education system is really important. we hope you will deal with that. one is now an assistant principal. the other one teaches sign language. he teaches sign language north of houston. i am the only senator ever to give a speech and sign language. one more thing, students cannot stand the debt they're going to have. i know the government makes a lot of money. people educating themselves --

public policy -- we should back away. that needs to be something that is portrayed. to lowerpaul: we have the cost. we shouldn't just say we are going to ignore the cost. we have to figure not to lower the cost, then pay for it. i have a bill that allow students to deduct principal and interest over their entire working career. you can'tns now, deduct interest if you make over $60,000 he year. it is a limited window. if you make $40,000 a year, how will you deduct $200,000 worth of payments? we are working on it. . disagree with bernie somebody has to pay for it.

always make it more affordable. , in new hampshire, there exactly the same. online could pay a lot less than brick and mortar schools. college?went to but -- high school, where one ago? what school in south carolina? >> kentucky,

dr. rand paul: that is in -- [applause] [indiscernible] dr. rand paul: how about you guys? us?you going to help [indiscernible]

[laughter] we appreciate that. ,hen we going to do differently we will run the government efficiently and properly. we would get rid of all of those that don't do any work. stop passing bills where they give the government a lot of money and don't know what to do with the money. fix a lot of problems of her made them read the bill before we voted on the bill. in december we pass a 2000 page bill. nobody read it. we put all the spending bills together, nobody reads it and it never gets fixed. have each bill individually, let's try to fix it.

>> they are all life democrats. he was on the school committee in manchester. >> they crossed the party lines. >> you encourage somebody to vote for some of the other party doesn't want. that's ok. >> i don't work for him. [laughter] >> is probably a democrat. >> thank you very much for your message. all right, thank you. >> this way, i don't know where --

>> my brother was a -- >> hi. >> her brother was governor in the 60's. things change. you. so nice to meet >> thank you. >> your dressing warm. this is our youngest son, he is 16. dr. rand paul: sundays yes, some days no. i think we're starting to surge. we're hoping for a good result. the right thing. i will be at the meeting. got 50 million views, a lot more face time on television than he would have on the debate. dr. rand paul: people come to

their senses. >> thanks for your support. we hear the chicken fingers are good. >> up along the bar area. [laughter] [indiscernible] hi, nice to meet you in person. >> i have been here. i have been working on it.

very nice to meet you. >> we are on social security. what are your ideas on cost-of-living? dr. rand paul: we have to stop the government from stealing money. or october, they brought a bill up at 2:00 in the morning and i said it is not right. they were all unhappy with me. the right once the money for military spending, the left wants it for welfare spending. that is one way we have to keep our mitts off of it. also, my age and younger we have to wait because we're living

longer. people already on it -- if you want another war in the middle east you left to go without it. cost a trillion dollars. ourselves can defend without having another trillion dollar war. >> we don't need any more wars. what is your position on the -- on the medicaid expansion. dr. rand paul: just one second. >> day ago.

-- there you go. we need to create less expensive health insurance. i was was in between jobs able to get health insurance for one dollar a day. that is $300 per year. it didn't cover my day-to-day expenses. a lot of people have that. >> i can't afford the deductibles. i would be back -- prefer to be back in and hmo. people talk about the medicaid expansion, they should be focusing on how to create more full-time jobs.

also, the people over 50 that get laid off it is almost impossible to find a full-time job again. they don't want you if you're older. dr. rand paul: one of the thing i proposed to bring america's we havek here is that $2 trillion overseas. gethould lower the taxes to apple to stop going overseas. that is bigger than the stimulus that obama has. >> that is a good idea. thank you very much. dr. rand paul: where are we looking?

>> thank you. >> how are you? [indiscernible] >> go ahead. >> looking over here. [indiscernible] dr. rand paul: what was that, i didn't hear you? my political directors --

marijuana helps you sleep. >> that is what i am saying. dr. rand paul: here's the weird thing, with 17 the allies drugs -- all of these things are already out there. >> they give it to them. >> alcohol kills her liver, and your kidneys. is thed paul: this hypocrisy. >> what is the difference between marijuana or a clinic that gives you methadone? well, thank you.

>> we are to -- on the way out. this is for you, here. [indiscernible] dr. rand paul: 20%, they're losing temper sent or 15%. 10% or 15%. they don't answer phone calls. i have yet to meet a college -- i think we're surging

at just the right time. coming our campaign is into its own. it is getting attention. young people are making phone calls. i think one of the big problems -- i don't think he is really conservative at all. think he has a hodgepodge -- i wrote recently that he wants power. any of us from a limited government position don't want that power. we want small government. i think true conservatives will reject him.

[indiscernible] us -- but the government behind -- which is it? that is what voters are pretty much questioning. >> you want to do well everywhere. i grew up as an athlete. right now, we just want to do with -- the best that we can.

i think i am the only fiscal conservative in the race. ruz want unlimited military spending, that is liberal. that isn't conservative at all. they raise everything. i think come without question, i am the only fiscal conservative on the republican side. they want to do indiscriminate bombing in the middle east. you will create more terrorists than you will kill. thanks, guys. >> i am a reporter for the --

americans for peace, and prosperity. -- theyunch last year want to venture get its to take a more careful view. you are one of the only that hasn't appeared at one of the forums. have they invited you? >> take a picture? >> i will do it for you. >> there it is, guys. [indiscernible]

>> it is a pleasure to meet you. dr. rand paul: what do you do? >> i am retired. i was a road warrior for the last 15. do you think: you're unusual with that? >> i was very lucky. i think it is tougher to do that in one location. my children going through college. >> they have met the, mark, luke, and austin. what is up with that? was a road warrior for the last 15 years of my career.

i knew i would never get that the back. we have ge in louisville. >> they moved their headquarters of the boston area. they got taxed out of their existence. it is better in massachusetts. >> it is crazy. i would get rid of the whole tax code in of a 14.5% for everything. wins.hink everyone you talk about the amount of , it is what it should be. the regulation along with that.

you won't hear that in the headlines. make no mistake, the leaders of the business is what they hear. dr. rand paul: the tax code is equal to a 2 trillion or $3 trillion a year burden. jobs going overseas. they don't understand why the company is relocating overseas. >> a lot of investments are over there. where will the companies go? overseas, il: going will try to lower the tax code. immediate stimulus that costs no money. dr. rand paul: we had one economist susan at least $1 trillion. >> thank you so much. dr. rand paul: help us out, thanks.

>> texas transplant. dr. rand paul: oh, wonderful. you said you're from texas? where. >> this is my husband. we spent half of our lives in houston. dr. rand paul: i grew up about an hour away from houston. did you go to high school in houston? we used to swim against them. >> our daughter just graduated from boston college. she is in love with the boston. we retired and moved to new hampshire. the political junkie like me, this is like my super bowl. if you come here often enough you'll probably meet everyone. >> that is my goal.

it is so exciting to meet everyone. dr. rand paul: we've seen a couple of kids at town halls that it's in every candidate and asked every candidate question. >> how wonderful. that is great for kids to be so involved in the process. i make sure they get a cup of coffee and are warm. best of luck to you. dr. rand paul: thank you, nice to meet you. nice to meet you. >> i am undecided, but leaning your way. dr. rand paul: well, good. absolutely. thank you very much.

>> more than anything. dr. rand paul: it was one of the first things when i got to washington. i will continue to go after it. i think it could fix a lot of things we had more rotation in office. >> yeah, thank you. >> manchester, yup. , we ask a question a but every little thing. dr. rand paul: i said repeatedly it looks like at the very least, if not a little bit more. she fired for doing the same thing she did.

they feel like they are above the law. >> don't they? tens of millions of dollars giving speeches at companies that businesses before hillary clinton. >> we can't whether it. thank you very much. dr. rand paul: take care. >> they call these lobster tail chicken nuggets. it is well worth it.

i want to thank you for having a solid plan on social security. when it comes to veterans. wanted it seems to do anything about it. i think it should be the opposite. if you aren't willing to come up with an answer, you shouldn't be up there. >> keep fighting the good fight. like, what are we doing? goodis it like to do a cruz.nlike rubio, or dr. rand paul: keep spreading the word for us. undecided? [laughter] >> hi, nice to meet you.

>> you are surging. dr. rand paul: people don't like the unfairness. i think most people think we were treated unfairly. a poll had us a surging. we think where coming on strong at the right time. >> they had a recent poll that cnn poll where they showed six out of the seven. we will keep: fighting. if it makes you mad, go get us some more votes. hello, how are you? >> nice to meet you.

thanks for coming out. dr. rand paul: hello, how are you all? thank you. nice to meet you. how are you? thanks for coming out. good to see you. we are borrowing $1 million a minute. people do better when they're left alone. i want a government that doesn't get involved in your business. if it was small enough, it would balance its budget every year. we haven't had common sense for a long time. in washington, both parties are bankrupting the country. are thoseht, there that want unlimited military spending. on the left, they want unlimited welfare spending. they get together and they raise the whole thing.

the debt could go from 10 trillion to $20 trillion. it added more debt in the last eight years and all the previous presidents combined. we may not be able to recover if we keep incurring so much in debt will. is first thing we have to do get good funding. the syrian civil war we have so money arms in their that they ride around in u.s. humvees. they have u.s. tanks, they pay the soldiers with our money. it in mosul, of

when they capture that city. he also people at the mccains and ruby is that want to fund -- want to fund this. but they're not good people. this is my wife kelly. >> nice to meet you. we hope you will consider. >> thank you. dr. rand paul: how did you guess with all of these cameras everywhere? very nice to meet you. >> good luck. dr. rand paul: thanks. >> hi, rand.

dr. rand paul: what is your name? this is my wife, kelly. how old is she? >> thank you. >> nice to meet you, senator. i was at your seminar last week. aboutpressed some doubts the economic recovery. since then, the stock market dropped 7%. what is your -- what would you do or not do to get the economy moving along more towards a solid recovery? dr. rand paul: i think the boom and bust cycle is exacerbated by

the federal reserve. they keep interest rates really low and people can't get their money in the bank. market,tes the stock but is that real earnings and real growth or an allusion? illusion? some of them have no problems. still to think there is more moves to be made. i don't give any specific advice. i am concerned about where we are. is main thing we need to do we need reform of the federal reserve. it shouldn't be setting interest rates. >> you already have my vote, i just thought i would come back.

think kelly will do the best job. dr. rand paul: thank you. this is my wife, kelly. >> a picture? >> smile. >> there you go. i think it is a good one. >> a wave come a handshake. dr. rand paul: this is my wife, kelly. i would say i am the only fiscal conservative in the race. i think both parties are

bankrupting the country. the republicans want to much military spending, the democrats want to much domestic spending. they stick you with the bill. >> good luck. dr. rand paul: hello. very nice to meet you. where are you from? you have some great greek friends in new york. they are out here today. this is my wife, kelly. >> god bless you. hello. nice to meet you, again. dr. rand paul: sure. [indiscernible] >> thank you.

we do this here. in new york for a couple of days. then we will end up in iowa. >> working hard for you. dr. rand paul: thank you. very nice to meet you. very nice to meet you. how are you? how are you? >> hi, i'm lisa. dr. rand paul: absolutely. >> thank you very much. dr. rand paul: you are very welcome.

there you go. you're very welcome. thanks for coming out. >> yes. >> hello, nice to see you. i am on the team and now, officially. i think we need a hmm.meone to actually -- >> i will be at the summit tomorrow. dr. rand paul: which one? >> summit, whatever. i know you have a million things to do that they but i will be there helping out. dr. rand paul: it is amazing to see how many people are out there making phone calls. i was in iowa last week.

i think we had 100 people making phone calls. >> almost exactly a year ago i had an appendectomy. >> he is kind of -- how would you describe yourself? dr. rand paul: i am excited. >> i support about 95% of the studies support. dr. rand paul: that is pretty good. >> none of us will agree 100% on everything. dr. rand paul: what we do need is someone who will not preside over the continuation of what we have. i will stop the spending. i will not do the borrowing, borrowing, borrowing. cows for bothed

parties in the to be gored. we can't just keep spending money. i am a very rare species. >> i still think the number one threat to our national security is our debt. you won't be able to defend yourselves. i think sometimes people mistake spending for something that works. the optimal say conservatives lesssay that they need federal control in education, but the same that we need to spend more money at the pentagon. a trillion there was dollars in natural gas.

we are spending $15 million via providing scholarships to college for foreign students. government is one of the few places on the planet will be of input and not output. exactly, if you measured output you would probably shut the whole thing down. >> that is probably why so money republicans are angry. all of that when you see that frenzy, that is what is made so many republicans angry. for somebody like me, i look for who will actually do something. not just a note to democrats, but also republicans. there are so many angry people. that is translating in the polls.

you can look at a voting record. you can look at how view vote. you can look at what he is also put forth in legislation. not only do you have somebody willing to speak it, but now a track record. that is what worries me about some of the other candidates. are how many said they supporting. governors have a nothing but implementing their state. in trying to say i am against common core. you implemented it. when thepaul: discovered it was unpopular to be that. they are neglecting their state. governor christie is still neglecting his state. todayis an article out talking about jeb bush's plan. it continues federal tyranny with education. what i like about you -- dr. rand paul: we've always been

for expanding -- and goes through his plan and talks about -- dr. rand paul: from 1980 until 2000 part of the republican platform is to eliminate that which started with a reagan. demigod george w. bush within said no -- then we got george w. bush that said no. under no child left behind, education doubled in size. increase spending, increase federal control. that is not conservative. it is not what any conservative ever says. that is why the vision you have to have is -- and we bring the power back to the states. every -- thatinst is it being sold. it, the u.s. picture

could approve state plans of unprecedented power. plan,doesn't like our there is a common knowledge you there. anotheris just entrenchment by the secretary of education. it has done more damage to teachers. i want to see that gone. that means -- to me, there two sides to the same coin. they go hand in hand. the reason for the department of education has the chokehold it does is because of the legislation in the first place. if thedn't it be nice

department of education said that school shut down and all the money was returned to the state? which a paul: i think be able to get the teachers on our side. the didn't like no child left behind. ought to beum decided by parents, teachers, and the school board but not by washington. >> when we finally discover what homeschoolers already have discovered. the internet is an amazing tool connecting you to very smart people. that still is not penetrated into public schools at all. think about how many amazing teachers are out there. >> there was already such a

thing as a free education. dr. rand paul: thank you guys for your help. >> thank you. said hi to you. >> hi. dr. rand paul: you are not -- is today your birthday? how old are you? meet you. dr. rand paul: thank you.

we have a secret plan to win maine, too. >> do you want one? ok. dr. rand paul: you are going to get one. thank you. did you want to say -- earlier. >> i had a question. do you mind if i film? yeah, absolutely. paul, you have been vocal of the issue of foreign policy.

gone on aia has hiring spree the last two years. almost doubling the number of lobbyists that they hire. on the republican and democratic side, they have been hiring. a fundraiser of the brother of the clinton campaign. german -- clinton campaign chairman. what will you do on this explosion of foreign lobbying, particularly from countries where there are civil rights issues? dr. rand paul: the first thing i am concerned about is we should reveal the 28 pages for the 9/11 report the talk about saudi arabia's possible involvement. i think that should be revealed to the american people. i also think that saudi arabia's treatment of women is abysmal, their human rights record is abysmal. i think hillary clinton ought to give the money back she has taken from saudi arabia. it will be very difficult for her to say she defends women's

rights which it takes money from countries that publicly whip women for adultery and stone them to death for adultery. i think it is a problem. i think saudi arabia needs to get away from financing religious radicalism that calls for violence against the west. this has been going on decade after decade. they need to sending arms as people into the middle east that have a hatred for america and spurning a radical theology. they need to reform and we will do everything we can. was a large there table of nurses that wanted to see you. dr. rand paul: sure. >> wow.

are impressed already. we are all in nursing leadership. ask you i wanted to was what your thoughts are on health care today and what you see it going. dr. rand paul: the was one overriding problem. i tell doctors, nurses, everybody the same thing. the average taxpayer over their working career pays about $75,000 in medicare taxes. the average recipient takes out about 350,000. there's a big problem there. families, and their kids will have smaller families. if you add in the longevity that we are all living longer. there is a shortage of money.

you can genetically increase the medicare taxes, but that might be punishment to workers. the other way to do it is to say that most of you, myself, my wife, have to wait longer to get medicare. time we retire it could be seven. i don't want that. tell me a better solution. the other solution is to dramatically raise taxes. that's may not be tenable. the other thing you can do is people were more successful. higher premiums, everything. nobody wants that either.

if we do nothing, the whole system will break. there are individual things we can do to try to match it. i am supportive of that. we discovered doing what we have been doing. anybody else? >> that was what we had a number mines. dr. rand paul: most people just they would get money to fix it. there is no money. there is a shortage of money to pay for everything. dialysis, it is less and the cost now. packaging, -- there is all the packaging.

>> what about health-care professional regulation? they can't afford it. >> of the, of the pharmaceutical industry. i don't know if i know the exact answer. i have been trying to push the fda to approve drugs quicker. do of the things we don't that we should do is we make everyone start from scratch. europe, asia, they do all these trials as well. a political director sister has a terminal illness.

there is a drug that she is ly, it haserimental been legal in japan for 10 years. we can't get it legal here. it has been on the market in japan for years. why shouldn't be available to the general public? the question is can you make it cheaper to bring more drugs to the marketplace? and what should the window be? if someone is making $50,000 a shot, maybe their window and these to be narrowed from 15 years to three years or two years. most of the marketplace figures these things out. there is an economist that says the miracle of capitalism is

other we can provide silk it is an for everyone, outdated anecdote. firste point is their sole was expensive. prices do come down. sometimes they are awful in the beginning. lasik surgery came out it was $3000 and i, now it is $400. dr. rand paul: that is one of the problems the hospital. the bill is $300,000. the mouthwashes $42. if your deductible is $10, things like that get thrown in.

we aren't conscious of the price. the doctors care about the price, and the patients. it, andld ask me about i was concerned about those that did not have insurance. they always ask what price. it is amazing. the price falls like everything else. capitalism works in certain there behy shouldn't more capitalism and health care. we went to the opposite direction to president obama. it hasn't made things less expensive. loadre paying for a bigger of people. none of it is simple. none of it is easy. in theprofound believer economic system that we have.

we give away almost $400 billion individually to churches and the salvation army. we have an amazing economy. it is based on freedom. >> thank you so much. >> robert this is father harry. >> senator paul. >> how're you doing?

[indiscernible] >> thank you for supporting our boys. >> i never know what i'm doing, or how long i'm doing it for. >> i said i had a picture of me. >> see you later.

[indiscernible] >> rand paul will remain in new hampshire tomorrow for a town hall meeting double also be to

republican candidates jim gilmore, jeb bush, john kasich carly fiorina, rick santorum and marco rubio. we have live coverage of that around 10:00 a.m. eastern on c-span. tomorrow we will take you through iowa for a campaign rally with ted cruz. be in the town of waterloo alongside iowa congressman steve king and television and radio host glenn beck. that is live only -- also on c-span. >> c-span's campaign 2016 is taking on the road to the white house iowa caucus. on live coverage beginning at 7:00 p.m. -- a.m.. we bring you live caucus coverage taking phone calls, tweets, and texts. we take you to our republican caucus afterwards. see the event live in its entirety and stay with c-span

and join in on the conversation on c-span radio, and c-span.org. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016] >> the supreme court heard oral arguments this week in whether city officials in whether city officials paterson, new jersey violated free-speech rights of a police officer who was demoted after his superiors assumed he supported a challenger in the local mayor's race. that assumption was based on the police officer being seen with a lawn sign that he was kerry for his bedridden mother. the court has affirmed that the government cannot retaliate against employees for supporting a political candidate. the issue in this case is whether the plaintiff is protected by the first amendment.

a rightc employees have not to be demoted. it doesn't matter if you're affiliated with a specific party. it does not matter if you are mistakenly received by your employer or supervisor that you are engaged in political association. to be protected by the first amendment. >> how would you define the right issue in this case? >> the issue here -- >> how would you do find the right that your client wishes this court to vindicate? that there the right is not necessary to have any affirmative acts.

would be fair to the proposition you're pretty before the court that you are asserting the right to be free from government inquiry into an oversight. with that be a fair statement? >> that would be a fair statement, justice kennedy. wayt sounds to me from the began that we take this case on the assumption that if he had picked up the sign, and had been supporting the candidates chief of police was challenging the beenbent, if he had engaged in that activity that will be protected. -- want us to take the case do we have to accept that proposition? >> you do not have to accept that proposition. a is just cly as

public employee has a right to associate or non-associate. it doesn't have to come in affirmative action. >> about the case came to us in the proposition that he was not engaging in speech at all. he was not engaging in trying to convey a message. it was just picking up a sign for his mother. if that is the basis of which the case comes to us and not sure how we can say his freedom of speech has been a bridge. >> in this case, it comes to us with respect to association with respect to speech, he by different doctrine. there was no need to do more analysis. >> he wasn't associated with

anybody anymore than he was speaking. he was associating with his mother, i suppose. expressing a political view. he was not associated with political parties. hours vindicates the right that justice kennedy described to you? in which he readily agreed with what case of hours vindicates that? >> elrod would stand for the proposition. >> he says you've a first amendment rights to favor political parties or not favor a political party. you cannot be fired for doing so. that is not what happened here. >> he was not favoring a political party. >> he was fired from the wrong reasons. there is no constitutional right not to be fired for the wrong

reason. hise was fired because government employer thought he had committed a felony and had it, you might have a cause of action under some statute. there is no constitutional right not to be fired for the wrong reasons. that is what happened here. >> there is a constitutional right to be able to be free from patronage decisions and to be discharged or demoted on patronage grounds. >> we never said that. are casesbrantley decided under the first amendment. the first amendment guarantees the rights to freedom of speech and freedom of association. your client was neither speaking, nor associated. so how could he possibly have a cause of action under the first amendment? >> he doesn't need to speak and

it is a need to take a position. didn't take a position with respect to promotion. it took the fact of the matter that since they were not affiliated with republican parties or supporting the republican party. none of those individuals would have been promoted or transferred. they didn't take any affirmative acts. >> i don't understand your answer. what expressive activity did he engage he was not allegedly demoted for failing to support the mayor, he was allegedly demoted for seemingly supporting the mayor's opponent. this court looked at the motive of the employer.

the motive of government kerry's government perceives that -- if that yout perceives are engaging in a political activity and the motive is to suppress one's believes and associations, that you look at it through governments analysis and it is their basis of their thatfax that you are evaluatin- facts that you are evaluating. the officer went to a political gathering. he went up and picked up a sign. what was misperceived by his employer was the fact of his intense. says -- i am not intending to support spagnole. thoughte clarify how i the case was presented. let us say the employer comes in to smith and says smith, i saw

you getting a political sign. and you are fired. and smith says -- it was not me, i was in a different town. in other words, it is a pure mistake of fact. your answers seems like you are taking advantage of the fact that you could argue these are activities, he was at a meeting, a political event. but your theory did not depend on that at all. can the person who was not even there, can he bring a first amendment challenge to this dismissal? >> yes. the point i was making -- >> what is the right he is asserting? and i will back up. can local government say all employees must be neutral in campaigns and must not take part in campaigns?

vote that they cannot take part in campaigns. >> there is no provision here. >> can the government insist on neutrality? i think the government can have a policy after balancing the interest between that of the employer and that of the position. >> is that an issue in this case? is there any allegation that there was policy of neutrality that no employee could engage in political activity? >> there was no such policy in this case. >> i thought there was an unwritten policy. policy that the chief said existed with respect to members of his staff only however with respect to that

there is no testimony regarding that policy. in other words, the people that worked in the chief's office, four individuals were officers. none of them ever heard of that policy. the policy was never raised in motions for summary judgment or before it the third circuit. we believe that the motion is --. to answer your question, no one knew of this policy so he could say there was a policy and he it, but itference to is not supported by any evidence in the case. -- a there a revenue remedy for your client aside from this action? does he have civil-service kind orons of any collective bargaining? what would happen if the boss nots in and says -- you did

turn out the lights last night, you are fired. is there a way for him to say -- i was on leave yesterday, it was not me. my point is maybe this should not be a constitutional violation if there are adequate remedies that may or may not be a first amendment issue. >> there were no other remedies. the state of new jersey has a state civil rights 1983 becauseics there is such a right does not mean that you can diminish the first amendment and give up your first amendment rights. clearly we proceeded with the fact that there was a violation amendment because it was created by the state. >> that is a strange act. it protects state employment only against first amendment violations? imagine it. there must be other protections for state employees. to the newpect

jersey statute, it is identical 1983 cause of action so it does not give you any additional rights. >> you have to violate the federal constitution to get relief under new jersey law? that is what 1983 says. what do new jersey laws say? >> he can proceed in federal court. >> what does the new jersey law say? >> the statute mimics the 1983 -- >> says you cannot fire a state employee in violation of the federal constitution. what a strange law. >> you do not have the text of it do you? so that we can know what we are talking about. >> new jersey law cannot create

substantive rights. heh respect to this matter, is also not protected by civil-service either. provides -- is he wrong? >> an attempt to violate? their but itd in does not give you an exclusive right. you cannot diminish his first amendment rights. not that theon is new jersey law advocates someone's rights but the question is does he have an independent remedy under state law/? have a remedy under state law but in this instance, he pursued his first amendment rights. >> how could he? what civil right was violated? iswhat mr. goldstein says

the state of the law, attempting to violate civil rights. what right, if we say -- >> the right not to associate. >> the right you are claiming. every right to bring this claim in federal court. broadery have substantive rights under new jersey law. i would be surprised if that was not the case. civil rights to which the new jersey statute may refer to under the new jersey constitution. because, it does not abrogate your first amendment rights. it does not matter if he engaged , there could have been a violation of a new jersey statute. it was never alleged in this case. up by not brought

respondents in this case in any of the arguments or briefs and with respect to this matter, it is our position that he has every right to me tame -- -- he isht to maintain alleging that he has the right not to associate. that right really stems from the have, that this court has considered and elrod in its progeny. the third circuit, makes its totake in requiring hefferna engage in some political activity. it is not necessary as i have indicated in elrod. the thirdly, circuit's decision in this case is actually -- it lacks common sense.

if you take a hypothetical with two police officer's going to pick up a sign. when they go to pick up the sign, they are at a campaign gathering and one police officer states to his employer, i was supporting spagnole. and the other would say i am not supporting, but i am doing this to pick up a sign for my mother. it should make no difference. the outcome is still the same and that they are both engaged in the activity. the only difference is that the employer perceived the one as engaging in protected activity. they went to stifle and squash .is rights of association had a chillingat effect on other employees. it is clear from the testimony case and if you go to

the appendix page 50, what is telling about this case is that when he went to pick up the side, there was a councilman there who was a chairperson of the election and he says -- you better be careful. maybe you should come back later when we are hanging up the signs. that clearly shows the chilling effect it would have not only in this police department or in the city of patterson, but other employees in other jurisdictions and different areas who would have the same issues. you would have to think twice if you did something. if you went to a political gathering or a campaign or you went to hear a speaker speak and you picked up a pamphlet and put it on your desk. theyur employer saw that candidate, andat they took action against you you would see that that is action based on a motive to suppress one's rights. >> all of those things would be

true if the mayor gave a speech saying -- i will fire anyone that is not a republican. all of those things would be true. it would chill people. with there be a cause of action because of that speech? >> because of the speech itself? he has not hired anyone but he has said he is going to fire anyone who is not a republican. does anyone have a cause of action for that? >> there would not be a claim because no action was taken. you have the perception -- >> so, what counts is whether action was taken for a particular reason, not whether you chilled people. argument is that this is unconstitutional because it chills other people. that does not carry water. justice, what carries water is that the fact that in this instance, the officer was

demoted on the employer's mistaken perception that he was engaged in activity. wasould you say that he demoted because he gave the appearance of exercising his first amendment rights? >> yes. they perceived that he was exercising his rights and the fact that he actually was not engaged in any political activity should make no difference with respect to the motivation and outcome of what place with the officer. the issue was clearly that it was ill will, it was because it was against the administration and they took that action to suppress that belief and it chilled others. may i reserve the remaining time for other questions? >> you may. >> mr. chief justice, i would

like to start with justice kennedy's question about defining the right. the petitioner having first amendment rights to not have adverse actions taken against him by the employer. he was directly injured -- >> what is your best case of that proposition? >> we think that the way the court to find the right of issue in o'hare demonstrates that an employee does not have to exercise is worst amendment rights worst. in those cases, the work said that the plaintiff can showadvet him by the employer. a constitutional violation of the first amendment simply by showing that the employer asked for the unconstitutional purpose of suppressing. >> i missed what you said. you are saying that in all of

those cases, no first amendment right was being exercised. is that your point? >> there were three plaintiffs and it was not clear if they engaged in any affirmative exercise of their first amendment rights. it was not clear if they had or had not and the court did not inquire. what happened was that the plaintiffs had adverse action taken against them because they had lacked the support of the correct republican party officials. are any number of reasons they could have lacked that support. they could have affirmatively refused to seek support. may haveher hand, they simply not have the time to seek the support or have been ignorant of that requirement. >> in all of these cases up to

fired,enever anyone is devoted, it -- demoted, it hurts and you want to bring a lawsuit. up to now, those lawsuits would have to show, i was asserting a first amendment right and for that reason i was not promoted. what you are saying is that you do not have to show that at all. all you have to assert is that the reason i was not promoted believedthe employer that i was thus and so or not us and so. you do not have to show any assertion of a first amendment right. you just have to show that the employer like republicans and that is enough. in the context, there was no question that the plaintiff was harmed. not think there is a serious concern that there -- this will expand the

universe of litigation somewhat but we already know that in the statutory context, the court has recognized based on a mistaken perception come up have not seen any flood of meritless lawsuits. i was in the republican party. >> have you know that we have not seen a flood of meritless lawsuits in that context? it does not come up there he does, courts it have been able to use the standard technique. >> you are looking at the reported decisions? your not seen the number of complaints filed? you have not seen the number of complaints filed? i also think that if the

plaintiff is going to have to allege that they actually help the police in question, this will raise the concern that justice kennedy mentioned earlier about oversight of police and probing into beliefs in elrod case is brought, the defendant will have incentive to -- say -- >> government oversight. o'hare, the court recognized that is of particular concern. we do not want courts to have to examine the nature and extent of the plaintiff's beliefs or associations. >> that may be a good idea. --civil a server service act. where do you find it in the first amendment? >> the right in question -- >> that is not your concern with the chill or is there some other right that is somehow affected? is that the government cannot

act for an unconstitutional purpose. this is still unclear to me. >> the defendant has been hurt in the constitutional sense because of the way the court has defined the right in question. what the court said in o'hare was that, not talking about a separate right, but the court was suggesting that we should not have first amendment tests if we can help it that lead the court to have to probe into a plaintiff's beliefs. >> i don't know why the right is not the right to be free from arbitrary employment reaction. he made a mistake. i was not being politically active. is there such a right under new jersey law? you cannot be fired for an arbitrary reason or a mistaken

reason? >> with respect to some job actions. the plaintiff is not complaining that he was fired for an inaccurate reason but he was demoted for an improper purpose. brief brought up in your that the employer might have had a policy. remand tot we should determine that the employer has no engaging a political activity. >> there would be a re-manned anyway. anyway.d there is a factual dispute about this. if you look at the summary judgment fireplace. there -- filings.

there was an assertion that this was a neutrality policy. thing thatat is one potentially the lower courts would have to look at to decide if it was deserved and resolved. i do want to get back to another positionhat the raises. the respondent, the petitioner has his own first amendment right that was violated. when an employer acts against an employee based on a perception of his beliefs, it creates a chilling effect which is the elrod cases are concerned. the other employees will note that they expect political orthodoxy. there is another concern here. response -- you can

you can imagine a situation in which the employer knows some people have engaged in political affiliation. i think that is one of the dangers here. that it will create a loophole. what we are saying, it is essentially a narrow color ready rollary. employee asres the a result, the employer should be equally liable. if there are no further questions. >> thank you, counsel. goldstein. >> may it please the court. in the briefing is over whether the plaintiff in a case like this has to assert a constitutional right.

the question so far have indicated in understanding the plaintiff would have to. the question is, is there a constitutional right here that we might define in other terms, including the one that justice oneedy identified as the not to have your political views inquired. to recognize this has not been this would not occur in the context. one of them is a big supporter. he gets demoted. the other is politically neutral. how could you make sense to a

, then of ordinary reason one who was in fact engaging and political activity, cannot be demoted. one did not do anything. focus on the precise wording. the court has said in cases that the decision to make -- remain neutral. reason, thatidual is a political choice. in your precise hypothetical, boasts -- both of the employees .ould have a claim this case is different, and critically different. the other side has quite consciously, throughout the case, made only two arguments. the first is that he was a supporter of spagnola. and he's given up on that. and the second is that he had no

association whatsoever. he didn't have any more association than i did. he was politically oblivious. and so, justice ginsburg, if you were to ask me that question, which is what difference -- what -- what sense does it make? the sense that it makes is one is exercising a constitutional right, and one doesn't -- justice kagan: so just to make sure i understand what you're saying, suppose there's somebody who comes into office, and it's a democrat. and he says i want as many democrats as possible in my office, no matter what jobs they're doing. now, what you're saying is he can't demote or fire republicans. he can't remove, demote, or fire people who have other political views, neither democrat or republican. but what he can do is he can get rid of anybody who is just politically apathetic. is that your view? mr. goldstein: if that was actually the policy, then technically, the answer to your question is yes under the first amendment. and i'd like to explain why. i know it sounds anomalous. the reason is that those people -- there is nothing in the first amendment that says that the government can't encourage people to be politically active.

and that is entirely the point of elrod and branti. justice kennedy: so you -- you encourage the person to be politically active and then fire him or her because they're politically active the wrong way? mr. goldstein: no, sir. justice kennedy: suppose the employee says, you know, i don't like the evening news. i like fiction. i don't know if i'm republican or democrat. i don't care. mr. goldstein: right. justice kennedy: he cannot be fired? what is his right? mr. goldstein: my point, justice kennedy, is that he may have a state law right; he does have a collective bargaining agreement right, but he doesn't have a first amendment right, because he's not engaging in first amendment-protected activity. i do -- justice kennedy: the -- the government has -- excuse me. mr. goldstein: sorry. justice kennedy: the government has a right to compel him to declare one way or the other? mr. goldstein: no -- justice kennedy, and that -- that brings us back to your question. and that is does he have a right not to have an inquiry into his political views. and that is, of course, not a right that's been recognized in any other political association

context. when the court discussed it in o'hare, it did it in a very specific and really important way, and that is it looked at cases like elrod and branti, which are general policies. and what the court has said there, is that when it's a sweeping policy, it's not necessary into -- to inquire into individual political beliefs. and what those cases ought to be understood as is applications of first amendment overbreadth doctrine. it is commonplace in first amendment law that if you have a general rule, and the general rule will be unconstitutional as applied to some people, and the other people involved weren't asserting first amendment rights, the policy can be facially unconstitutional, and we don't inquire into the individual standing of the plaintiff. and that's what happens in elrod and branti. it's not necessary to inquire into the -- each individual employee. it is an entirely different -- justice kagan: see, i had always thought that the -- the idea behind those cases is a different one. that the idea has to do with why the government acted. and once we say that the government acted for an impermissible purpose, which is to -- let's say in my hypothetical, get as many democrats as possible into the

government, once we say that's an impermissible purpose, it matters not at all whether the person is a republican, an -- an independent, or somebody who has never thought about politics in his life, because the government is acting in a way that's wrongful, irrespective of that. mr. goldstein: and we just disagree. it's called an individual right, not a government wrong. the individual has to be engaging in -- whether it's expression or association, i actually thinks it's not contested, justice kagan, any more on the free speech side, that with cases like waters, an employee cannot bring a first amendment free speech claim that says, you know, i didn't actually engage in speech, but my employer thought i did. there is no first amendment right not to have this individual inquiry. and justice kennedy, remember that our position, in particular -- justice kagan: so does that mean that the government can compel speech of a person if the person really just doesn't care one way or the other? mr. goldstein:no. it's a very important distinction. so let me give a hypothetical that ought to be hard for us, and that is heffernan is asked by the chief of police, you know, do you support the mayor.

he's completely agnostic, and he refuses to support the mayor, and he's transferred. the decision not to support or to be subjected to your hypothetical is a political choice. this case was framed by the plaintiff in a very specific way on purpose, and that is he disclaimed any such influence, any such pressure, any such choice that he was having to make. now, the important piece about -- on this question of inquiry is that our position only applies to a party that doesn't claim anything other than being politically apathetic. so justice kennedy, there is no inquiry. justice kagan is quite right that if you have somebody who is an independent or a democrat or republican, the first amendment doesn't care. but if the plaintiff is going to pursue a claim that says i'm not engaged in association or speech, there is nothing to inquire into -- justice ginsburg: mr. goldstein, let's take a title vii case, and the employer fires a woman because he thinks she's pregnant. she brings a sex discrimination

case and alleges, well, i wasn't pregnant. i just was gaining weight. so she has no sex discrimination claim, then, because he she wasn't pregnant? mr. goldstein: justice ginsburg, the courts are divided. the position of the eeoc is that she would have a claim. i just think it's a good point for us that congress can write laws that recognize such, regarded as claims. justice scalia: those -- those statutes focus on the employer. the employer cannot discriminate on the basis -- mr. goldstein: right. justice scalia: -- of sex. mr. goldstein: right. justice scalia: and that employer was doing that. the first amendment does not focus on the government; it focuses on the citizen. the citizen has a right to free speech and free association. that's the difference between the two cases. mr. goldstein: well, it will not surprise you that i agree, justice scalia. justice kagan, if -- if we could just take this outside the public employment context. and the reason i want to do that is that we ought to be able to agree that the first amendment rights aren't greater

association of rights there. the court has pointed out that there is a greater federalism interest in managing the public employment workforce, and also that this is an unconstitutional conditions case. but just imagine the following simple -- you know, hypotheticals that relate just to this case. imagine that the chief of police, with the same motivation, went up to heffernan as he went to pick up the sign, grabbed the sign, and tore it up. or imagine that heffernan was trying -- was stopped from entering a parade in favor of spagnola, but what he was actually trying to do was just cross the street. or he went to the building where it is that spagnola had the -- his headquarters, and the chief of police stopped him from going in, but he was actually going to his lawyer's office. those are all the exact same motivation. and there -- i don't think there's any way the court would recognize such a claim. it's a very sympathetic claim. okay? i get the fact that we are very concerned that public employees not be transferred or demoted, but we have other laws and other regimes that are -- that fill that gap.

justice roberts: what is -- what is the other law here? what -- what relief does he have? mr. goldstein: he has two forms of relief. the first is the collective bargaining agreement. i will tell you that it is not in the record, but it is judicially noticeable. it is a public document. it's available on the government web sites of the state of new jersey, and it is exactly what you would expect. in fact, it's a little bit broader. it says that if you are -- you have an employment action that is inequitable, it is -- you -- it is grievable. the second thing is the attempt provision, which was discussed, and justice alito is right, that there are broader civil rights under new jersey law. and this just makes sense. the court, in cases -- justice roberts: well, do -- do you agree that the petitioner is entitled to relief under that provision of the collective bargaining agreement? mr. goldstein: if -- if he -- his allegations of the facts are correct, yes. justice kennedy: in your hypothetical about stopping the person from crossing the street, or, they think, entering the parade, the individual is -- has no right to insist that the government doesn't make a first amendment judgment about his activities? mr. goldstein: that's correct.

justice kennedy: in -- in other words, the -- the -- the individual in the -- in -- in -- in -- the citizen of the united states, have no right, have -- -- have no injury, have no interest in making sure the government doesn't evaluate everything they do from a political standpoint? mr. goldstein: i think they have an interest, justice kennedy. i'm not saying that. we are concerned that people be able to have conscience, that they be able to make their own personal, private judgments. but what we're talking about here in the context in which there is a real concern that i would like to talk about, about whether it will interfere with the management of local government, that it's an affirmative constitutional right, it's a violation of the first amendment. now the reason you ought to be concerned, justice kennedy:, is there is another side of the coin. take it from the perspective of the supervisor. if this right is recognized, which is to say the plaintiff need not have engaged in any association, then the supervisor's expression of political views may well be chilled because he has to worry that any employee can say, look,

i was regarded as politically active. if i could just give you this case again, and that is, take the sign out of it. the plaintiff says he was well known as a spagnola friend and supporter. okay? imagine that that's discussed in the chief of police's office, but the chief of police thinks that -- that heffernan really should be transferred. okay? the chief -- if the petitioner is right, you really have to worry because if it's discussed, then there's every reason that heffernan can just bring a lawsuit saying, look, i wasn't actually involved in the campaign, but you did because he was my friend. and that is a very significant consequence for the individual rights. now, if we didn't have other protections that get to the concern about conscience, i could see the case being even stronger. justice kennedy: we know that you can't -- let's assume in this particular position you can't be fired because you're a republican or a democrat and that's what they -- that's what a -- what they do. but that -- the person did not engage in that activity.

he's still -- he still is in the position of the government ascribing to him a political belief that he does not have. mr. goldstein: justice kennedy, that's right. the government thinks a lot of things about me, okay? some of them are not very nice, i imagine, but -- and some are about my politics and that sort of thing. but there is not a constitutional right to have the government not think something about you. just remember as well -- justice kennedy: here, they thought and they acted. mr. goldstein: okay. or to act, justice kennedy. justice ginsburg: it's not just something. the government is taking action against a person because the government thinks that that person is exercising first amendment rights. mr. goldstein: just -- justice ginsburg: and i thought -- and unlike justice scalia -- that the thrust of the first amendment is operating on government. it says government, thou shalt not -- thou shalt not act on the basis of someone's expression, speech or belief. mr. goldstein: well, essentially all of the rights, individual rights in the constitution,

other than the antislavery provision, requires state action. they all talk about what the government can't do. but the government -- justice ginsburg: yes, so here, the government acted. no question they demoted the person. this was a detective, and they put him back on the beat. so the government acted. why did they act? because they thought that this person was engaging in political activity. mr. goldstein: well, justice ginsburg, let me just say that i don't think it's -- it's contested after the petitioner's reply brief. you described this in first amendment terms, that if this was a speech case, which it used to be, rather than an association case, he would lose. it is well settled in this court's precedents that the threshold inquiry under pickering is did the individual engage in the constitutionally protected activity? this actually is at issue, i should say, in the court's other associational case, public employment association case, this sitting, where there is a significant issue of is there a different rule that applies -- when we're talking about a policy, justice kennedy -- that applies broadly to a lot of employees versus an individual, one-off employment action which

is what is at issue here? we think that's a critically important distinction, whether you look at this as kind of a pickering standard case, where the first thing that has to happen is that the individual has to assert at least that they engaged in the constitutionally protected activity. if you have an elrod and branti-type case, which is what's discussed in that part of o'hare, it's an entirely different kettle of fish because there, you do have a general policy. you could see people being chilled. you could see the government taking a broad view of its employees. justice kagan: i guess i'm not sure how that works. it just seems to break down very easily, if you can't have a broad rule that says that you can fire everybody but democrats. but you're saying that you are going to allow somebody to come in and fire people one at a time. mr. goldstein: 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 branti -- the fact that you don't -- 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 has had 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 engaged in -- justice kagan: but you're saying -- and -- 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 a 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.

mr. goldstein: 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 don't think you can do it. but the second is that's right. the constitution doesn't fix everything. justice kennedy: 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. mr. goldstein: 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 that there's the materiality requirement. justice kagan: 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 the 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'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. mr. goldstein: justice kagan, i think you are right. it is an important thread of this court's decisions. and 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 -- justice breyer: can 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. mr. goldstein: what would the attempt -- justice breyer: well, let's say there doesn't have to be a thousand examples.

no one can espouse in a public place the political philosophy of ruritanianism, okay? okay. i mean, i doubt that they'll pass such a law -- (laughter.) but i just -- substitute any one that 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 the law 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. mr. goldstein: justice breyer, the reason that we allow -- justice breyer: well, i just want to know, is it yes or no? does it -- in your opinion, does it attempt to -- a clear attempt to violate the first amendment in a statute? it has general application.

does it violate the first amendment? does it abridge the freedom of speech? mr. goldstein: if it's only going to be an attempt and it's not going to succeed, no. the statute you describe is unconstitutional. justice breyer: it is unconstitutional. mr. goldstein:that's right. there are all kinds of times -- justice breyer: it will have a lot of bad effects. it will have all kinds of chilling effects all over the place. mr. goldstein: if it's defined, justice breyer, as not going to succeed, if the statute doesn't say -- stephen g.breyer no, no, by chance it happens not to succeed. mr. goldstein: oh, no, justice breyer. the -- in -- 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 judgment action. justice breyer: of course. and i'm just asking you if, in fact, they think it will succeed, they want it to succeed, that's why they passed it, and through a fluke it fails, does 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? mr. goldstein: it doesn't. justice breyer: it does not. mr. goldstein: and here would be an example. justice breyer: and he fails -- if it fails -- mr. goldstein: if i could just finish, justice breyer, just so -- 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 ruritania, that is to say the law won't go into effect -- we tried, but the money was taken away from us -- it's not unconstitutional. justice scalia: or -- or you could say that the law is passed by congress but vetoed by the president, is there a violation of the constitution? mr. goldstein: there would not be. but in my hypothetical vote in which -- or justice breyer's where it actually goes into effect -- justice sotomayor: we're off on a tangent because there's no injury in this situation when a 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 branti 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. mr. goldstein: more than a policy, it will actually have adverse consequences for someone trying to exercise their constitutional rights. justice sotomayor: well, someone, they have come along and not promoted people. mr. goldstein: yeah. justice sotomayor: all right? so you have to have someone come in and say i'm not a democrat? mr. goldstein: justice -- justice sotomayor: i'm not a -- mr. goldstein: sorry. justice sotomayor: -- republican? or you need someone to tell you what they are? mr. goldstein: 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 jobs. and there doesn't need to be an inquiry. but the -- justice sotomayor: so why isn't it simple to say, i'm not hiring

you, or, i'm demoting you because you politically associated? and doesn't that chill the person from even walking by a campaign? doesn't it chill others who do want to associate marginally? mr. goldstein: no. it's a real -- justice sotomayor: i'm assuming there's no policy in place, that there's not -- there's nothing to prevent this otherwise, like the hatch act. mr. goldstein: i think it's a really important point on the question of chilling because elrod and branti 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 of the mayor, or had decided to remain politically neutral, this is a bizarre case that comes to you on the assumption that he is completely politically apathetic.

justice scalia: it is bizarre. and do -- 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? mr. goldstein: no, but i -- i -- justice scalia: it doesn't solve every problem. mr. goldstein: no. but i do think that there is a concern that comes into play. and 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, whether it's redistricting, whether it's campaign finance. there's lots that 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 layers 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 branti rule when it's involved, one-off cases. the opinion in o'hare describes the political views of the tow truck company there.

and it has never been regarded as a first amendment problem when you don't actually exercise any first amendment rights. justice breyer: but 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 -- of attempts generally. mr. goldstein: it's not true of the constitution. justice breyer: why not? mr. goldstein: well -- justice breyer: 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 violent the first amendment. mr. goldstein: under -- justice breyer: that, i think, is what you have here, which is why i raised my point. mr. goldstein: 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 our hypothetical. the concern that a broad policy or statute will have widespread effects. that is not anything like this. we have a guide -- justice scalia: do you know of any case in which we have relied on chilling effects where what was at issue was a one-off like this one as opposed to a -- a general policy which had a chilling effect? i don't know of any case. mr. goldstein: to the contrary, i can tell you that in -- in both waters and garcetti v. ceballos, 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 employer's 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's speech. and the public employee's argument in both those cases is

that, look, these rules are going to chill speech because they are of uncertain boundaries. we need to have wide-ranging expression. if i have to bring my case, there will be inquiries into my speech views or whatever, 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. we have -- 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. and the question in this case seems to me to be highly artificial. it's sort of -- it's like a law school hypothetical. mr. goldstein: i agree. justice alito: 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 -- 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 that's -- the question of his motivation, and the other was this alleged policy prohibiting any kind of political activity. even in the -- the person who is just apathetic, is there not a -- a first amendment right to be -- say, i don't -- 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? mr. goldstein: all right. so justice alito, the third circuit has a rule discussed in the brief -- brief in opposition adopted in a case called ghaly 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 are going to be other kinds of cases where you have a public employee that just is not asserting any rights at all, and is not involved, say, in 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.

and our real -- justice sotomayor: i'm sorry. you have to -- you have to show some facts to draw that inference. i mean, you just can't say, i'm involved in this and the employer fired me because of that. mr. goldstein: well, justice sotomayor -- justice sotomayor: to show some connection between the firing and -- mr. goldstein: right. justice sotomayor: -- the political belief. mr. goldstein: i would just take you back to my hypothetical of getting rid of the sign. and his political view -- his support of spagnola is discussed in -- 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. the -- my point is this: the set of cases that you have to be concerned with, there have been no other cases we've been able to identify like this one. it's very small. justice kagan: well -- mr. goldstein: but the downside risk is significant. justice kagan: mr. goldstein, i mean, if somebody had come in to me before today's argument and just said, does the first amendment prevent the government from punishing a person because that person does not share the government's views, i would have said, why, 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. mr. goldstein: it -- 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 it, you aren't actively pursuing the right in any way, or even if you aren't active about it. justice roberts: thank you, counsel. mr. frost, you have a minute left.