Blog: Court uses 4th Amendment ruling to skirt free-speech issue

Thursday, May 6, 2010

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A 2009 U.S. Supreme Court ruling in a Fourth Amendment search-and-seizure case is having significant influence in the realm of First Amendment law, as evidenced by a recent federal appeals court decision.

The high court case, Pearson v. Callahan, was decided on qualified-immunity grounds and is affecting how the doctrine is applied in First Amendment cases.

Qualified immunity provides that government officials are not liable for constitutional violations unless they violate clearly established constitutional or statutory law. It used to be that a qualified-immunity analysis proceeded in two steps. First, the court would have to determine whether there was a violation of a constitutional right. If there was no violation, the case was over. However, if there was a violation then the court would proceed to the next step and determine whether the right was clearly established in the law.

In its decision in Pearson, the Supreme Court ruled that federal judges have the choice to bypass the first step — determining whether there was a constitutional violation — and proceed to the next question of whether the right was clearly established.

In a previous analysis, I explained that “the potential remains that federal judges will decide at least some First Amendment cases on qualified-immunity grounds by deciding simply whether the right was clearly established — without addressing the question of whether certain government conduct violates the First Amendment in the first place.”

The 2nd U.S. Circuit Court of Appeals followed this pattern in its May 3 decision in Plofsky v. Guiliano, a retaliation case brought by the former executive director and general counsel of the Connecticut State Ethics Commission. Alan Plofsky contended that commissioners on the ethics panel violated his First Amendment rights by terminating him in retaliation for certain statements he made about their conduct during his disciplinary hearing.

The defendants countered that the court should dismiss the claim based on qualified immunity. A federal district court refused to grant summary judgment to the defendants on Plofsky’s First Amendment claim.

On appeal, a unanimous three-judge panel of the 2nd Circuit reversed in its summary order, finding that there was no need to determine whether the commissioners actually violated Plofsky’s First Amendment rights. Instead, the panel reasoned that under Pearson, Plofsky’s free-speech rights were not clearly established.

The court explained: “We determine that, even if defendants’ decision to terminate [Plotsky] violated his First Amendment rights, those rights were not clearly established at the time that he was terminated.”

The danger with extending Pearson to such cases is that it could add further confusion to many already muddled areas of First Amendment jurisprudence, such as:

  • When does speech cross the line from protected speech into fighting words or true threats?

  • When do public school officials have jurisdiction to regulate students’ online speech?

  • When do public employees speak pursuant to their official job duties and when do they speak as citizens?

Courts conceivably could avoid deciding difficult First Amendment questions and just say “the right was not clearly established.”

This could hinder further development of First Amendment law and leave many First Amendment litigants without proper redress.

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