Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 40 (1996)

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Cite as: 518 U. S. 668 (1996)

Scalia, J., dissenting

them to be. When, as here, "the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in petitioners' complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate." Berkovitz v. United States, 486 U. S. 531, 540 (1988) (emphasis added). It is at least highly arguable that the complaint alleged what the Court calls a violation of the "right of free speech" rather than merely the right of "political affiliation." The count at issue was entitled "FREEDOM OF SPEECH," see App. in No. 95-191, p. 15, and contended that petitioners had been retaliated against because of "the exercise of their constitutional right of freedom of speech," id., at 17. One of the two central factual allegations is the following: "John A. Gratzianna openly supported Paxson's opponent for the office of Mayor. Campaign posters for Paxson's opponent were displayed at plaintiff O'Hare's place of business." Id., at 16. It is particularly inexcusable to hide behind the Court of Appeals' treatment of this litigation as "simply an affiliation case," since when the Court of Appeals wrote its opinion the world had not yet learned that the Free Speech Clause is divided into the two categories of "right of free speech" and "political affiliation." As far as that court knew, it could have substituted "freedom of speech" for "freedom of political affiliation" whenever it used the term, with no effect on the outcome. It did not, in other words, remotely make a "finding" that the case involves only the right of political affiliation. Unavoidably, therefore, if what the O'Hare Court says in its first explanatory paragraph is to be believed—that is, what it says in the latter part of that paragraph, to the effect that "intermixed" cases are governed by Pickering—there is simply no basis for reversing the Court of Appeals without balancing, and directing that the case proceed, effectively depriving the city of its right to judgment on the pleadings.

Unless, of course, Pickering balancing can never support the granting of a motion to dismiss. That is the proposition

707

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