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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0550%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

[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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RE I Se cirrcccentnincencsscsssncctnnnsscnesionss 1
SUMMARY OF ARGUMENT.....000.0.......ccceeeeeeeeeeees 1
IIIT siiciscisctnnisasesssensintinseitithentsiinmuniinngsincenesiniinneisiin 3

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
SII wiccvturnssthitessiasedeideianiidinaitatiterhisicintedinatiaiteiasiananin 15

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0550%3A10. Public record. Not legal advice.