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 versu

and this is actually discussed in the court's opinion in o'hare in describing elrod and branty. i want to start there. we have to recognize this right has never been recognized in any other political association case whatsoever. and there's no logical reason why it would occur specifically in the public employment context, which is an unconstitutional -- >> can you explain, mr. goldstein, what sense it would make there are two people -- for example, mr. frost, one of them is a big supporter of spaniola, and he gets demoted, and the other is politically neutral,

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 ca

right, the elrod branty rule 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. >> 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 any way. that's true of transferred intent. you shoot a but you meant to shoot b. it's true of attempts generally. >> it's not true of 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 that 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 raise my point. >> great. justice breyer, if you would just contrast in

and that's what happens in elrod and branty. it's not necessary to inquire into the each individual employee. it is an entirely different -- >> see, i had always thought that 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, it matters not at all whether the person is a republican, an independent or somebody who's never thought about politics in his life because the government is acting in a way that's wrongful irrespective of that. >> right. 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 think it's not contested, justice kagan, any more on the free speech side that with cases like waters, an employee cannot bring a free speech claim that says i didn't engage in free speech, but my employer thou