An LDG Case is Argued in the United States Supreme Court

Today, Heffernan v. City of Paterson was argued in the Supreme Court of the United States.  [Disclosure:  My partner Victor Afanador handled this matter on behalf of defendants in the District Court and the Third Circuit.  He was at counsel table today as Supreme Court counsel argued for defendants.].  The transcript of today’s oral argument can be found here.  The opinion of the Third Circuit being appealed from is here.

In a nutshell, the issue before the Supreme Court was whether plaintiff, a police officer who alleges that he was demoted after being seen picking up a campaign lawn sign for a Paterson mayoral candidate other than the incumbent, can assert First Amendment rights of freedom of speech or association when, in fact, he was picking up the sign for his mother and was not in fact exercising any First Amendment right of his own.  Indeed, plaintiff did not live in Paterson and could not even vote in that mayoral election.  The Third Circuit ruled for defendants, and the Supreme Court granted plaintiffs’ petition for certiorari.

The Court appeared divided during the oral argument.  Justice Kagan, who had written an article about this subject before joining the Court, appeared to be the strongest advocate for plaintiff, while Justice Scalia seemed most firmly in defendants’ camp.  Justice Alito and, seemingly, Chief Justice Roberts, may be votes for defendants, while Justices Breyer and Sotomayor appeared to lean in plaintiff’s favor.  Justice Ginsburg may be on plaintiff’s side as well, though she had questions of both sides.  So did Justice Kennedy, whose questioning opened the argument and who may be the deciding vote in the case.  Justice Thomas, following his usual custom, did not speak.

The oral argument transcript is well worth reading.  Defendants’ counsel comes across as having made the better presentation, as plaintiff’s counsel’s arguments  seemed to confuse even some of the Justices who may side with plaintiff.  An Assistant to the Solicitor General, who argued for the United States as an amicus curiae in support of plaintiff, was somewhat more effective.  Style points do not, however, determine the outcome, and it is not at all clear at this point that either side goes into the post-argument phase with a definite advantage.