Amicus Curiae Brief — Heffernan v. City of Paterson, 136 S. Ct. 29 (2015) (No. 14-1280)

[Supreme Cour, Us.

FILED

NOV 20 208

OFFICE OF THE CLERI

No. 14-1280

Inu The

Supreme Court of the Ainited States

JEFFREY J. HEFFERNAN,

Petitioner,

Vv.

CITY OF PATERSON, MAYOR JOSE TORRES, and POLICE

CHIEF JAMES WITTIG,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES

IN SUPPORT OF PETITIONER

MICHAEL T. KIRKPATRICK

Counsel of Record

MEGHAN M. BOONE

PATRICK D. LLEWELLYN

Institute for Public Representation

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington, DC 20001

(202) 662-9535

michael. kirkpatrick@law.georgetown.edu

i

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT.....000.0.......ccceeeeeeeeeeees 1

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I. The Third Circuit Rule Runs Counter to Our

Judicial System’s Long-Standing Preference

Se IIT ccsisiiiesncesicduitieasanciediubeatbaiiadidocnsiieatinicmnieiie 3

II. The Lack of Clarity in the Third Circuit Rule

Chills Public Employees’ First Amendment

pS RE eT 7

III. The Lack of Clarity in the Third Circuit Rule

Promotes Inefficiency in the Government

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Ei insiinniadebinenstvisiteduensieeniiiiiosanndiienbinctnapiieiet 18

TABLE OF AUTHORITIES

CASES

Armstrong v. D.C. Pub. Library,

154 F. Supp. 2d 67 (D.D.C. 2001) ............

Bartnicki v. Vopper,

Ee I ED cvcccscursnsscevecnccenessensseene

Bd. of Educ. v. Pico,

ee Se Se IE rete sonscnvescensesnsnesvesesenes

Cement Kiln Recycling Coal. v. EPA,

493 F.3d 207 (D.C. Cir. 2007) ...............006

City of Houston v. Hill,

ee EE EE IIE coinnnctessneevonnaseenicnssacseves

Connally v. Gen. Constr. Co.,

ee SETI? sesicecntnseccnensconsesenseesnessse

Cunney v. Bd. of Trs. of Grand View,

660 F.3d 612 (2d Cir. 2011).............. ee

Dombrowski v. Pfister,

Se ee A I siicivesucenscosnsecvesinapeenensens

Families Achieving Indep. & Respect v. Neb. Dep't

of Soc. Servs.,

111 F.3d 1408 (8th Cir. 1997)...................

FCC v. Fox Television Stations, Inc.,

| oS 4, 7,8

FEC v. Wis. Right to Life, Inc.,

SS W, GE ee cecceciccnesvsmcsvenscenecestscneesvessnsn 15

Garcetti v. Ceballos,

ey IEE scinecnccnsecesnstininsiiioeniiamemnaial 13

Gentile v. State Bar of Nev.,

ee es SEED iidiidceitsnireccicdaicbeicainiehinsiiaiaaiaiaenaiaal 4

Grayned v. City of Rockford,

ee Se EE eitientiiabintlesinesnnisnislnituamsiaamniiad 4,7,8

Heffernan v. City of Paterson,

2 F. Supp. 3d 563 (D.N J. 2014).................ccceeeee 15

Johnson v. United States,

a, es Se SIE ctcnncsninssindiitennediuiediaaneamuamanadal 4

Keyishian v. Bd. of Regents,

Se Rs MTN dacirkinccicniceicieaiiaideeinciaaniiaaas 9, 10, 12

Martin v. City of Struthers,

Pe a te IED sieiciniccicianioneisicticinieeaeasimeeduaiedaas 14

NAACP v. Button,

PF 0 Cs Ge GHEE sicnssecensinseassepeaninntentsennaaniniins 7,8

iv

N.Y. Times Co. v. Sullivan,

TE 8

Pickering v. Bd. of Educ.,

CE 16, 17

Rutan v. Republican Party of Iil.,

a mernanans 5, 6, 7, 11

Serv. Emps. Intl Union, Local 5 v. City of Houston,

595 F.3d 588 (6th Cir. 2010) ..............ccccccccsserereees 4

Slavin v. United States,

408 F.3d 623 (Gta Cir. BOO) ........ccccccccresccccsecsceees 5

Smith v. Goguen,

a 8

United States v. Natl Treasury Emps. Union,

a a 16, 17

W. Va. Bd. of Educ. v. Barnette,

Ee 13

Waters v. Churchill,

a 6

Wooley v. Maynard,

TT saateciisemanesmsennsnsconsesscecseocscest 14

Vv

OTHER AUTHORITIES

James K. Harter, Frank L. Schmidt & Theodore L.

Hayes, Business-Unit-Level Relationship Between

Employee Satisfaction, Employee Engagement,

and Business Outcomes: A Meta-Analysis, 87 J.

Applied Psychol. 268 (2002) ...................c.cceeeeeees 17

Rachel Clapp-Smith, Gretchen R. Vogelgesang &

James B. Avey, Authentic Leadership and

Positive Psychological Capital: The

Mediating Role of Trust at the Group Level of

Analysis, 15 J. Leadership & Organizational

Se Sn II citiisccninateniscniinidantinieanitabpasiianaies 16

1

INTEREST OF AMICUS!

Amicus curiae the National Association of

Government Employees (SEIU/NAGE) is a labor

organization with thousands of members

throughout the United States. SEIU/NAGE is

affiliated with the Service Employees International

Union. SEIU/NAGE represents public and private

workers at every level of government—federal,

state, county, and municipal—across a range of

professions, including police officers, firefighters,

correctional __ officers, nurses, paramedics,

emergency medical technicians, office workers, and

professional! workers.

SUMMARY OF ARGUMENT

A longstanding principle in the American

legal system is that the law should be clear. Clarity

is a cornerstone of our legal system because

individuals need fair notice of what is prohibited so

they can appropriately conform their conduct to the

requirements of the law. Courts have repeatedly

1 Each party has consented to the filing of this brief by

lodging blanket written consents with the Clerk of the Court.

Pursuant to this Court’s Rule 37.6, Amicus states that this

brief was not authored in whole or in part by counsel for any

party and that no person or entity other than Amicus or its

counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

2

applied this principle to penal laws, civil laws,

regulations, and judicially created doctrines.

Where the government is acting as employer,

the rules dictating what conduct can result in

adverse employment actions should likewise be

clear to provide notice to public employees of how to

avoid such penalty. The rule adopted by the Third

Circuit, which allows a government employer to

take adverse employment actions against a public

employee based on the employer’s misperception of

the employee’s political association, fails to provide

the clarity necessary to allow public employees to

properly conform their conduct. Thus, the Third

Circuit rule contradicts the long-standing principle

requiring clarity in the law prior to adverse

government action and should be rejected by this

Court.

Clarity is also an essential requirement for

rules implicating First Amendment freedoms as

unclear rules chill protected speech and activities.

When the boundaries of a rule are unclear,

regulated individuals will avoid conduct well

outside of the actual scope of the rule in order to

avoid penalty. The Third Circuit rule has such a

chilling effect on public employees’ conduct. The

lack of clarity leaves public employees guessing as

to which activities could cause a supervisor to

3

misperceive their political associations, and leaves

them without a remedy for any resulting adverse

employment actions. This uncertainty pushes

public employees to curtail protected conduct and

thus impermissibly chills protected activities.

In addition, the lack of clarity in the Third

Circuit rule reduces government efficiency because

the rule encourages mistrust and insecurity in the

government workplace. Well-documented research

shows that employees who are more secure in their

jobs perform better at work. Under the Third

Circuit rule, the government workplace is less

productive because public employees fear

supervisors’ perceptions of their political

associations and potential adverse actions that may

flow from these misperceptions. Thus, the decision

below threatens the government's ability to

efficiently administer public services.

ARGUMENT

I. The Third Circuit Rule Runs

Counter to Our Judicial System’s

Long-Standing Preference for

Clarity.

Our judicial system has long insisted on

clarity in the law in order to “give the person of

ordinary intelligence a reasonable opportunity to

4

know what is prohibited, so that he may act

accordingly.” Grayned v. City of Rockford, 408 U.S.

104, 108 (1972). Clarity in the law both provides

fair warning to regulated individuals and

safeguards them against arbitrary or

discriminatory enforcement. Jd. at 108—09.

This Court has often applied this principle in

the criminal context as the need for clarity in laws

that mete out punishment is “the first essential of

due process of law.” Connally v. Gen. Constr. Co.,

269 U.S. 385, 391 (1926). Accordingly, this Court

has struck down numerous penal statutes for

failing to provide adequate notice of their scope.

See, e.g., Johnson v. United States, 135 S. Ct. 2551,

2557 (2015). Further, the insistence on clarity in

the law extends beyond criminal law and has been

applied in many different circumstances, from

reviewing indecent broadcasting regulations, FCC

vu. Fox Television Stations, Inc., 132 S. Ct. 2307,

2317 (2012), to rules governing attorney conduct,

Gentile v. State Bar of Nev., 501 U.S. 1030, 1048-51

(1991).2 Taken together, these cases establish a

2 A review of case law in lower courts further reveals the

myriad contexts in which clarity in the law has been enforced.

See, e.g., Cunney v. Bd. of Trs. of Grand View, 660 F.3d 612,

621 (2d Cir. 2011) (striking down a zoning statute as unclear);

Serv. Emps. Intl Union, Local 5 v. City of Houston, 595 F.3d

588, 605 (5th Cir. 2010) (striking down a municipal parade

ordinance as unclear); Cement Kiln Recycling Coal. v. EPA,

5

clear principle: in order for the government to take

lawful adverse action against an individual, the

rules demarcating what actions may result in a

penalty must be clearly ascertainable.

This principle should apply with equal force

in the public employment context. Public employees

should not be subject to the risk of punishment

based on a rule that does not apprise the employees

of what conduct is protected. Thus, the Court’s

concern for preventing adverse government action

under unclear rules is pertinent in determining

when government employers may take adverse

employment action against public employees.

Well-established precedent from this Court

dictates that a government employer may not

retaliate against a public employee on the basis of

that employee’s political affiliation. See Rutan v.

Republican Party of Ill., 497 U.S. 62 (1990).3 The

493 F.3d 207, 222~—24 (D.C. Cir. 2007) (upholding a hazardous

waste permit regulation as clear); Slavin v. United States, 403

F.3d 522, 523-24 (8th Cir. 2005) (upholding a prohibition on

interstate transportation of fighting birds as clear); Families

Achieving Indep. & Respect v. Neb. Dep't of Soc. Servs., 111

F.3d 1408, 1415-16 (8th Cir. 1997) (upholding a policy

regarding access to public benefits office lobbies as clear);

Armstrong v. D.C. Pub. Library, 154 F Supp. 2d 67, 81

(D.D.C. 2001) (striking down a regulation of library patrons

as unclear).

3 Of course, there is an exception for certain positions where

“party affiliation is an appropriate requirement,” see

6

rule adopted by the Third Circuit below, however,

permits such retaliation when driven by the

employer’s misperception of an employee’s political

affiliation. As a result, the Third Circuit rule fails

to provide adequate notice to regulated

individuals—both employers and employees—

concerning what conduct is protected. Government

employers are hard-pressed to know what actions

are actually proscribed under this rule because, by

definition, employers do not know when they are

mistaken.4 Likewise, public employees are left

guessing as to how any one action will be perceived

by an employer and, as a result, whether such

action is protected. Thus, the Third Circuit rule is

impermissibly unclear.

Furthermore, as is particularly relevant in

this case, this Court has explicitly identified the

importance of clarity in the law as it relates to First

Amendment freedoms. As this Court explained in

Grayned, “where a vague statute ‘abuts upon

sensitive areas of basic First Amendment

Rutan, 497 U.S. at 64, but such an exception is not at issue in

this case.

‘ This Court has previously acknowledged that, where the

government acts as employer, the most efficient rule to apply

when analyzing potentially retaliatory actions is one which

focuses on what the employer “reasonably believes” to be the

situation. Waters v. Churchill, 511 U.S. 661, 682 (1994)

(Souter, J., concurring).

7

freedoms,’ it ‘operates to inhibit the exercise of

those freedoms.” 408 U.S. at 109 (internal brackets

omitted) (quoting Baggett v. Bullitt, 377 U.S. 360,

372 (1964) and Cramp v. Bd. of Pub. Instruction,

368 U.S. 278, 287 (1961)). Thus, “rigorous

adherence to th[e] requirements” for

constitutionally sound clarity is particularly

necessary where the First Amendment is

implicated. Fox, 132 S. Ct. at 2317. The

pervasiveness of the long-standing constitutional

principle of clarity in the law—and its amplified

importance in the First Amendment context—

illustrates why the Third Circuit’s unclear rule

should not stand.5

Il. The Lack of Clarity in the Third

Circuit Rule Chills Public

Employees’ First Amendment

Associational Rights.

Lack of clarity in the law chills protected

activity and fails to allow First Amendment rights

the “breathing space to survive.” NAACP v. Button,

371 U.S. 415, 433 (1963). This is because, when

5 That the majority of this Court’s decisions discussing clarity

in the law involve interpreting statutes or regulations is of no

moment. Whether it is congressionally legislated statutes or

judicially decided opinions, the effect on regulated individuals

is the same: unclear rules explaining the scope of the law

prevent fair warning and can chill First Amendment

freedoms.

8

individuals are faced with unclear rules, they

inevitably “steer far wider of the unlawful zone

than if the boundaries of the forbidden areas were

clearly marked,” Grayned, 408 U.S. at 109 (internal

quotation mark and ellipsis omitted), in order to

ensure their compliance with the law. Therefore,

speech is chilled because of the speaker’s concern

that such speech may result in negative

consequences—even when the speech is protected

and such a concern is ultimately unfounded. This

chilling effect runs counter to the purpose of the

First Amendment. Fox, 132 S. Ct. at 2317 (“When

speech is involved, rigorous adherence to those

requirements is necessary to ensure that ambiguity

does not chill protected speech.”); N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 278-79 (1964).

Rules’ implicating First Amendment

freedoms are required to meet a_ heightened

standard of clarity exactly because of the concern

that a lack of clarity in the law will chill protected

speech. Fox, 132 S. Ct. at 2317; Smith v. Goguen,

415 U.S. 566, 573 (1974). First Amendment rights

are “delicate and vulnerable, as well as supremely

precious in our society.” Button, 371 U.S. at 433.

Therefore, “[t]he danger of that chilling effect upon

the exercise of vital First Amendment rights must

be guarded against by sensitive tools which clearly

9

inform what is being proscribed.” Keyishian uv.

Bd. of Regents, 385 U.S. 589, 604 (1967).®

The need for clarity in rules implicating the

First Amendment is equally important in the

context of public employment. Public employees

who are unsure of whether particular speech or

actions are protected will be motivated to stifle

their own conduct in order to avoid adverse

employment actions that may result from

unprotected speech. The speech and association of

public employees will therefore be impermissibly

chilled as employees may avoid large swathes of

protected First Amendment activity out of fear that

it falls within the wide “danger zone” of an unclear

employment rule. See Dombrowski v. Pfister, 380

U.S. 479, 494 (1965).

The concern that an unclear rule would

impermissibly chill public employees’ exercise of

their First Amendment rights was the animating

principle behind this Court’s decision in Keyishian

v. Board of Regents. There, after refusing to sign

6 Concern for protecting First Amendment freedoms has also

prompted this Court to carve out an exception to its usual

preference for abstaining from ruling on state laws’

constitutionality before state courts have interpreted them,

explaining that delay in waiting for a state court to interpret

a statute poses too great a threat to First Amendment

freedoms. E.g., City of Houston v. Hill, 482 U.S. 451, 467-68

(1987).

10

loyalty oaths, three university faculty members and

one employee faced dismissal under a New York

statute allowing removal of public officials for

“treasonable or seditious act[s].” Keyishian, 385

U.S. at 591-93. In invalidating the statutory

scheme as_ insufficiently clear, this Court

emphasized that the law did not reasonably apprise

teachers of what speech or activities could expose

them to dismissal. Jd. at 599 (“The crucial

consideration is that no teacher can know just

where the line is drawn between ‘seditious’ and

nonseditious utterances and acts.”). As a result, the

Court was concerned that such uncertainty would

impermissibly chill speech, as “[w]hen one must

guess what conduct or utterance may lose him his

position,” he will avoid engaging in behavior well

outside the prohibition’s actual scope. Jd. at 604.

Thus, the Court held that the statutory scheme’s

“extraordinary ambiguity” unconstitutionally

chilled First Amendment freedoms. See _ id.

Moreover, the lack of clarity was dispositive despite

New York’s recognized compelling interest in

preventing subversion. Jd. at 602.

Under the Third Circuit rule, public

employees are compelled to engage in the same

guessing game as the public employees in

Keyishian. Any employee action that might possibly

be misperceived as indicating a political association

11

carries the risk that an employer may take an

adverse employment action against that employee.

Public employees are left to theorize which

seemingly innocuous activities could prompt an

adverse employment action, were such activities to

be misinterpreted by a supervisor as counter to

their own political associations. For employees

faced with this dilemma, silence is the only

practical solution.

This effect is especially burdensome for

employees whose views on specific issues diverge

from their political affiliation. For instance, a

lifelong Democrat is likely to hide her pin that

reads, “Climate change is a hoax,” worried that her

supervisor might misperceive her as a Republican

and demote her on that basis. She could not be

demoted for her protected speech of wearing the pin

or for her actual political affiliation as a Democrat,

Rutan, 497 U.S. at 73—76, but the Third Circuit

rule leaves open the possibility that her demotion

for her misperceived political affiliation as a

Republican is lawful. Such employees are caught in

a catch-22: if the lifelong Democrat’s views on

climate change become known, she risks being

misperceived as a Republican; on the other hand, if

her affiliation with the Democratic Party becomes

known, she risks »eing misperceived as supporting

positions that she may strongly oppose. In either

12

case, her views could be misperceived as supporting

a political position she does not actually maintain.

A public employee in this position is pressured to

stifle any expression of political views in order to

avoid such a predicament.

Beyond the workplace, the Third Circuit rule

also has the potential to chill even private speech

and behavior. Under the Third Circuit rule,

anything a public employee says or does outside of

the workplace that is witnessed by a coworker or

supervisor could be misperceived as _ behavior

indicative of a political association. Cf. Keyishian,

385 U.S. at 599 (“Does the teacher who carries a

copy of the Communist Manifesto on a public street

thereby advocate criminal anarchy?”). Indeed, that

is what happened to Petitioner. Private conduct

within public employees’ homes in the presence of

guests could produce the same result. A public

employee is therefore motivated to stifle his or her

speech in practically all arenas of his or her life to

avoid creating the impression (correct or not) of

political associations that could subject the

employee to adverse employment actions. Such

chilling of private speech is offensive to the First

Amendment. Cf. Bartnicki v. Vopper, 532 U.S. 514,

532-33 (2001) (stating the chilling of private speech

implicated important constitutional concerns).

13

The chilling of public employees’ private

conduct is particularly concerning in light of this

Court’s decision in Garcetti v. Ceballos, 547 U.S.

410 (2006). In Garcetti, this Court held that

although a public employee’s speech in his official

capacity did not enjoy First Amendment protection,

his speech as a private citizen was protected. Jd. at

421-23. The Court found that the protection of such

private speech was in the public interest, as it

ensured the public would “receiv[e] the well-

informed views of government employees engaging

in civic discussion.” Jd. at 419. Here, even though

Petitioner was off-duty and outside of the

workplace when he picked up the campaign sign for

his mother, this action nonetheless led his

employer to misperceive that he supported a

political candidate. In holding that Petitioner’s

employer acted lawfully in demoting him on the

basis of false perceptions, the Third Circuit rule

compels public employees to curtail associative

behavior even when they are away from the

workplace, as employees are unsure what

behaviors will be protected. ’

7 The lack of clarity in the decision below could also have the

effect of coercing disclosure. See W. Va. Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943) (holding compelled speech

to violate the First Amendment). To avoid risking

misperceptions, public employees possessing political beliefs

similar to their supervisors might feel pressured to

14

The lack of clarity in the Third Circuit rule

also harms open-minded and undecided public

employees because it discourages them from

gathering political information. A curious public

employee caught watching a political party's

primary debate or reading a particular periodical in

the breakroom risks a supervisor’s misperception of

that employee’s political association. When merely

educating oneself could result in punishment, a

public employee is less likely to self-inform. Rules

that discourage information gathering, such as the

Third Circuit rule at issue here, chill the First

Amendment right to read and receive information

and, in the process, weaken the electorate. See Bd.

of Educ. v. Pico, 457 U.S. 853, 866-68 (1982);

Martin v. City of Struthers, 319 U.S. 141, 143

(1943).

In sum, the lack of clarity in the Third

Circuit rule chills an array of public employees’

associative behavior, including workplace conduct,

private behavior outside of the workplace, and

political information gathering. Without clarity

regarding which behaviors and speech are

preemptively disclose their political associations in order to

preclude misperception and potential adverse action. In such

workplaces, silence may not be a viable option. Thus, the lack

of clarity in the Third Circuit rule might also impermissibly

intrude on an employee’s fundamental “right to refrain from

speaking at all.” See Wooley v. Maynard, 430 U.S. 705, 714

(1977).

15

protected, public employees will reasonably choose

silence. A rule with such corrosive influence on the

speech of public employees flies in the face of the

axiom that “First Amendment freedoms need

breathing space to survive.” FEC v. Wis. Right to

Life, Inc., 551 U.S. 449, 468-69 (2007). The Third

Circuit rule allows for no such breathing space.

Ill. The Lack of Clarity in the Third

Circuit Rule Promotes

Inefficiency in the Government

Workplace.

The Third Circuit rule works to the

detriment of both public employers and employees

by negatively affecting the workplace. Unclear and

unpredictable employment rules promote employee

insecurity, thereby decreasing workplace efficiency

and hampering employers’ efforts to foster

productive work environments. Adopting a clear

rule protecting employees from retaliation based on

either actual or misperceived association will

prevent this inefficiency.

8 In fact, the District Court concluded as much in granting

summary judgment to Respondents in this case. See

Heffernan v. City of Paterson, 2 F. Supp. 3d 563, 583 (D.N.J.

2014) (“Might the Third Circuit approach permit employers to

intimidate employees into avoiding anything that might even

be misconstrued as political speech or affiliation? The

[contrary Sixth Circuit] approach seems designed to afford

the First Amendment breathing space.”).

16

This Court has repeatedly recognized the

value of efficiency in the administration of public

services. See, e.g., Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968). In particular, when

evaluating whether a restriction on the speech of

public employees is constitutionally sound, this

Court analyzes whether the restraint “arrive{s] at a

balance between the interests of the employee, as a

citizen, in commenting upon matters of public

concern and the interest of the State, as an

employer, in promoting the efficiency of public

services ” United States v. Natl Treasury

Emps. Union, 513 U.S. 454, 465—66 (1995) (internal

brackets omitted). Unsurprisingly, work

environments are more productive when employees

feel that their employment is secure; a strong sense

of security is an important positive factor in

employees’ trust in management, which in turn is

an important component of productivity. See Rachel

Clapp-Smith, Gretchen R. Vogelgesang & James B.

Avey, Authentic Leadership and Positive

Psychological Capital: The Mediating Role of Trust

at the Group Level of Analysis, 15 J. Leadership &

Organizational Stud. 227, 231 (2009) (examining

the role that high levels of trust in management

plays in improving employees’ psychological capital

and work performance). Conversely, workplaces

with insecure employees fall short of their optimal

levels of productivity. See id. Insecurity also leads

17

to workplaces with disengaged employees, while

engaged employees are more productive and

perform comparatively well across a variety of

metrics. See, eg., James K. Harter, Frank L.

Schmidt & Theodore L. Hayes, Business-Unit-Level

Relationship Between Employee _ Satisfaction,

Employee Engagement, and Business Outcomes: A

Meta-Analysis, 87 J. Applied Psychol. 268 (2002).

The lack of clarity in the Third Circuit rule

erodes public employees’ sense of security and trust

because employees are concerned about how their

actions will be perceived by supervisors and

whether such perceptions will result in detrimental

consequences. See supra Part II. Thus, the Third

Circuit rule will lead to less productive government

workplaces and a less efficient administration of

public services from those workplaces.®

Furthermore, unlike cases concerning a balancing

of public employees’ right to free speech with

government efficiency, see, eg., Nat? Treasury

Emps. Union, 513 U.S. at 465-66; Pickering, 391

U.S. at 568, there is no balancing to be done here;

the Third Circuit rule both curtails public

employees’ freedom of association and results in

® This reduction in trust and security could also lead to other

costs for government employers, such as increased turnover

or additional investment in employment retention programs,

further compounding the resulting inefficiency by diverting

resources from administration of public services.

18

less efficient administration of public services.

Accordingly, the lack of clarity in the Third Circuit

rule leads to a workplace that is both undesirable

for employees and unproductive for employers.

CONCLUSION

This Court should reject the Third Circuit

rule because it contradicts our judicial system’s

age-old principle of providing regulated persons

with clear notice of prohibited conduct. Under the

Third Circuit rule, public employees are unsure

which activities could result in adverse

employment action because they cannot reasonably

anticipate how a supervisor may perceive the

political motivations of a particular activity. This

uncertainty pressures public employees to self-

censor both inside and outside the workplace. The

lack of clarity in the Third Circuit rule not only

chills First Amendment freedoms of public

employees, it also lessens public employees’ sense

of security in their employment, leading to

decreased trust in management and, ultimately,

diminished efficiency in government workplaces.

These consequences for public employees and

government workplaces warrant a clear rule which

prohibits all politically motivated workplace

reprisals. The judgment of the Court of Appeals

should be reversed.

19

Respectfully submitted,

Michael T. Kirkpatrick

Counsel of Record

Meghan M. Boone

Patrick D. Llewellyn

Institute for Public Representation

Georgetown University Law Center

600 New Jersey Ave. NW, Suite 312

Washington, D.C. 20001

(202) 662-9535

michael.kirkpatrick@law.georgetown.edu

November 20, 2015