Thursday, February 18, 2016

Basing Actions on Knowledge at the Supreme Court

People sometimes complain about philosophy for its reliance on esoteric thought experiments. "Suppose someone wants to kill someone else, but falsely believes that she's allergic to a certain medicine that will actually help her, but he was ignoring certain defeaters his belief, but he wouldn't have been doing so if he had been raised by better epistemic role models, etc." No doubt there is a grain of truth behind the stereotype, and the criticism of it. But weird cases do matter—both because we're sometimes after necessary truths which should cover all cases, and because the world is a big and weird case, and sometimes weird cases are actual.

If you don't know it already, I am pleased to present to you the absolutely bizarre case of Heffernan v. City of Paterson, currently before the Supreme Court of the United States. If an undergrad had made it up as a counterexample to some principle in a philosophy course, I'd've raised my eyebrows and chuckled quietly at its cleverness.

In April 2006, midterm campaign season was getting underway. In Paterson, NJ there was a mayoral election campaign. The police chief supported the incumbent, but Jeffrey Heffernan, a police officer, was seen holding a campaign sign for the challenger, and was apparently demoted for that reason. Open-and-shut free speech case, right? Not quite. See, here's the twist: Heffernan wasn't really a supporter of the challenger—his employers only thought he was. He was picking up the sign for someone else, not engaging in speech of his own. The City argues that, since he wasn't engaged in political speech, he wasn't doing anything that triggers First Amendment protection; so it was perfectly consistent with the Bill of Rights for him to be demoted. He was demoted for being thought to support the challenger, not for actually supporting him. Nothing illegal about that.

It sounds like a joke. It's a cute argument, and I'd probably give it an A in an undergraduate course, but it's difficult to imagine it being taken seriously. But as of this moment it is the law of the land; both the trial judge and the Third Circuit have accepted this utterly bizarre argument; it currently awaits the Supremes.

So if I'm understanding this correctly, here's where we are. (Lawyer friends, please tell me if I've got this wrong.) Suppose I'm an employer—a public employer, even—in the United States, and I support Bernie Sanders for President. I suspect that one of my employees is a Hillary Clinton supporter. According to current US law, it is perfectly constitutional for me to fire her for that reason—so long as I'm not reacting to actual political speech or association. If I catch a glimpse of Hillary's logo on her computer and fire her for that reason, it's illegal if she went to that website to contribute, but fine if it was just an ad that happened to be displaying while she was elsewhere on the web.

In Heffernan's case, he didn't actually support the mayoral challenger, but as I see it that doesn't matter—what matters is that he wasn't engaging in protected conduct when he was doing the thing that got him demoted. So in good philosophical fashion, we can make the case (even) more complicated. Let's suppose for example that my employee really is a Hillary Clinton supporter, but that the reason I think she is fails to demonstrate it. (Heffernan was picking up a sign for his mother; what if he'd also had his own sign at home?) Maybe she's been careful to keep her political opinions to herself, but her enemy in the office tells me a story he's just made up about how she supports Clinton. Now I think she's a Clinton supporter, but I don't know it. (Philosophers will recognize a Gettier case.) If I fire her on these grounds, does she have a First Amendment complaint? If the courts so far prevail, I don't see how she could—sure, she happens to have been a Clinton supporter, but it wasn't her support for Clinton that got her fired—I didn't even know about it!

Hell, we can go even further. Suppose I do know about her support for Clinton—I've been keeping a close eye on her, despite her attempts to be discreet. I know about her donation to the campaign; I know she went to a rally on a vacation day; I know she volunteers on weekends. But I don't fire her for any of those reasons. I fire her, to be sure, but I base that action on some other, misleading evidence, not connected in the right way to the facts. (Maybe I fire her for going to Springfield—assuming that she's going there to attend the Clinton rally that will be there; but in fact she's going for some other reason.) I'm still not firing her for any activity that is protected. I just know about, and disapprove of, a bunch of such activity, and fire her for something that just happens to be one of the things that looks like those but isn't.

I'm a professional epistemologist—I can play this game all day. I can think of lots of ways one could engage in what ought clearly to be prohibited by the First Amendment, without using as a reason something that is a genuine expression of free speech. I'm not a lawyer, but the previous rulings seem to me to be laughably wrong. I hope the Supreme Court overturns them.

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