The U.S. Supreme Court’s qualified immunity decision in Pearson v. Callahan, a Fourth Amendment search and seizure case, continues to do significant damage in First Amendment jurisprudence. The latest example — a federal appeals court used the decision to hold that punishing a university student for an off-campus Facebook post did not violate clearly established law and, as such, granted qualified immunity to university officials.
Qualified immunity is a doctrine that holds that government officials are not liable for constitutional violations unless they violate clearly established law. Prior to Pearson, a common method of approaching constitutional law cases in which qualified immunity was a defense was a two-step process. First, the court determined whether or not there was a constitutional violation committed. Second, the court determined whether or not that right was clearly established.
In Pearson, the U.S. Supreme Court claimed that this so-called two-step order of battle was a waste of judicial resources and gave lower federal courts the option to bypassing the first step — whether or not there was a constitutional violation in the first place — and proceed directly to the clearly established prong.
This leads to the retardation of the development of constitutional law, as courts can avoid the difficult question of whether or not there was a constitutional violation.
That is exactly what happened in Hunt v. Board of Regents of University of New Mexico, a case involving a medical student at the university’s school of medicine. Paul Hunt, the student, got in trouble for making the following Facebook post after the 2012 presidential election:
All right, I’ve had it. To all of you who support the Democratic candidates:
The Republican Party sucks. But guess what. Your party and your candidates parade their depraved belief in legal child murder around with pride. Disgusting, immoral, and horrific. Don’t celebrate Obama’s victory tonight, you sick, disgusting people. You’re abhorrent.
Shame on you for supporting the genocide against the unborn. If you think gay marriage or the economy or taxes or whatever else is more important than this, you’re fucking ridiculous.
You’re WORSE than the Germans during WW2. Many of them acted from honest patriotism. Many of them turned a blind eye to the genocide against the Jews. But you’re celebrating it. Supporting it. Proudly proclaiming it. You are a disgrace to the name of human. So, sincerely, fuck you, Moloch worshipping assholes.
University officials cited Hunt for violating the university’s professionalism policy. That policy prohibited, in part, individuals from engaging in “unduly inflammatory statements or unruly personal attacks, or to harass others.”
The university placed Hunt on “a professionalism enhancement prescription” which included meeting with mentors and writing an apology to classmates.
Hunt later sued in state court, alleging a violation of his First Amendment free-speech rights. The case was removed to federal court. A federal district court granted qualified immunity to the university defendants.
On appeal, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit affirmed the district court and granted qualified immunity to the university officials in its Nov. 14, 2019 decision in Hunt v. Board of Regents.
“Off-campus, online speech by university students, particularly those in professional schools, involves an emerging area of constitutional law,” the panel wrote. The panel determined that a reasonable university official would not know whether punishing a student for an off-campus social media post would violate the First Amendment.
The decision is most unfortunate. A college or university student should not be punished for an off-campus social media post that is not a direct threat or that does not lead to an imminent riot at school.
Even worse, because of Pearson v. Callahan, the appeals court bypassed the constitutional question and relied on the clearly established prong as a crutch.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).