At first glance a search-and-seizure case involving informants, the consent-once-removed doctrine and other Fourth Amendment concepts would seem to have little to do with the First Amendment. But the U.S. Supreme Court’s recent decision in Pearson v. Callahan could have a substantial impact on much First Amendment litigation.
The reason is that in its decision the Court addressed qualified immunity — a defense often raised in constitutional tort litigation. Qualified immunity can arise in an Eighth Amendment “cruel and unusual punishment” case, an excessive-force case under the Fourth Amendment or a free-speech case under the First Amendment, to name a few examples.
Qualified immunity provides that government officials are not liable for constitutional violations unless they violate clearly established constitutional or statutory law. The idea behind qualified immunity is that it would be unfair to impose liability on public officials when they reasonably believed they were acting lawfully.
In Saucier v. Katz (2001), the Supreme Court ruled that in cases where a qualified-immunity defense arises, a reviewing court must follow a two-step process. First, the court must determine whether the facts as alleged by the plaintiff constitute a violation of a constitutional right. Second, the court must determine whether — at the time of the conduct in question — that right was clearly established.
The problem with this sequence, according to some, is that the first question — whether there has been a constitutional violation — is often a much more difficult and judicially burdensome question to resolve than the second question.
Consider the area of student speech and the Supreme Court’s decision in Morse v. Frederick (2007) — the so-called “Bong Hits” case. In that decision, the Court had to determine whether a high school principal violated the First Amendment by punishing a student for displaying a poster with the message “Bong Hits 4 Jesus” while standing off-campus on a public street near the school.
The Court divided 5-4 on much of the ultimate free-speech question. However, all nine justices ruled that the defendant — Principal Deborah Morse — was entitled to qualified immunity. Justice Stephen Breyer began his separate opinion with the following: “This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more.”
Breyer then criticized the Saucier v. Katz qualified-immunity structure or “order of battle,” writing: “The relative ease with which we could decide this case on the qualified immunity ground, and thereby avoid deciding a far more difficult constitutional question, underscores the need to lift the rigid ‘order of battle’ decisionmaking requirement that this Court imposed upon lower courts in Saucier v. Katz.”
Justice would move more quickly if courts decided the qualified-immunity question first in many a case. However, the Saucier “order of battle” does serve the purpose of ensuring that constitutional law develops by having the courts tell us when different types of government conduct violate a constitutional right.
U.S. District Judge Lynn Adelman and Jon Dietrich wrote in a 2007 article for the Federal Courts Law Review,“While allowing courts to decide the easy question and avoid the hard one might make sense from a judicial economy standpoint, it would impede the development of constitutional law. If courts regularly decide the question of immunity before determining whether the defendant had violated a constitutional right, they would establish few such rights.”
In Pearson v. Callahan, the proponents of judicial economy and the doctrine of constitutional avoidance (that a court should avoid deciding constitutional questions when there is another basis for deciding the case) prevailed. A unanimous U.S. Supreme Court determined that lower court judges have the option of deciding whether to follow the sequential, two-step process from Saucier. Writing for the Court, Justice Samuel Alito wrote that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” This means that lower court judges can decide the qualified-immunity question first rather than take the other step of determining whether a constitutional right was violated.
Alito qualified the ruling by cautioning that in many cases the order outlined in Saucier “is often beneficial,” as it “promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.”
However, 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.
Consider the area of student expression at the secondary-school level, where the lower courts are divided on the question of what legal standard to apply when school officials punish a student for online expression created off-campus. A reviewing court could avoid deciding the underlying constitutional question by saying that the law of student speech is muddled and dismissing the case on qualified-immunity grounds because the right was not clearly established.
Michael L. Wells, a law professor at the University of Georgia, says that the decision “will make it easier for courts to decide that the law is unsettled, grant qualified immunity and not get to the merits of important constitutional questions. … Now there is always an argument against facing them.”
Wells, who wrote an article on this subject in the Southern Methodist Law Review in 2007, told the First Amendment Center Online that “First Amendment values and constitutional values in general would be better served by an approach that obliges courts to decide constitutional questions.”
Hopefully, federal judges will take heed of Alito’s recognition that the Saucier approach “is often beneficial” and “promotes the development of constitutional precedent.”