Eleanor Finch
The First Amendment of the United States Constitution guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from promoting one religion over others, restricting religious practices, or abridging freedom of speech, press, assembly, and the right to petition. While the First Amendment protects these rights, the concept of qualified immunity has been used by the Supreme Court to shield government officials from liability for violating these rights. This doctrine has been criticised for potentially deterring officials from abusing their power and for shutting the courthouse doors to Americans who have endured constitutional violations. This raises the question of whether qualified immunity violates the First Amendment by allowing government officials to infringe on the rights it protects.
| Characteristics | Values |
|---|---|
| Qualified immunity | Protects government officials from liability for violating someone's constitutional rights if the law was not settled or known at the time of the conduct in question |
| Protects police officers unless they were "plainly incompetent" or "knowingly violate the law" | |
| Protects government officials from lawsuits alleging that the official violated a plaintiff's rights | |
| Allows suits where officials violated a “clearly established” statutory or constitutional right | |
| Does not apply when an official's conduct violated a constitutional right | |
| Does not apply when a court determines that the violated constitutional right was clearly established | |
| Does not apply when a court determines that a reasonable officer could have believed that a warrantless search constitutionally complied with the Fourth Amendment |
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What You'll Learn
Qualified immunity in First Amendment lawsuits
Qualified immunity is a legal principle of federal law that grants government officials performing discretionary functions immunity from First Amendment lawsuits for damages unless the plaintiff shows that the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known". It is less strict than absolute immunity, protecting officials who "make reasonable but mistaken judgments about open legal questions", extending to all [officials] but the plainly incompetent or those who knowingly violate the law.
The U.S. Supreme Court has ruled many times that government officials are entitled to qualified immunity in First Amendment lawsuits, meaning they might not face liability for violating someone's constitutional rights if the law was not settled or known at the time of the conduct in question. For example, in Wood v. Moss (2014), the Court ruled that Secret Service agents were entitled to qualified immunity when they removed protestors away from then-President George W. Bush. The Court found that the agents did not violate the protestors' First Amendment rights of speech.
Similarly, in Reichle v. Howards (2012), the Court ruled that Secret Service agents were entitled to qualified immunity from a lawsuit alleging a retaliatory arrest. In Morse v. Frederick (2007), the Court ruled that a high school principal was entitled to qualified immunity for suspending a public high school student for displaying a "Bong Hits 4 Jesus" sign at a school-sanctioned event. The Court found that the student's First Amendment rights were not violated because the sign promoted illegal drug use.
In Pearson v. Callahan (2009), the Supreme Court held that reviewing federal district courts could apply the "clearly established" prong first without deciding whether there was a violation of a constitutional right. This approach has been criticised for potentially slowing the growth of constitutional law. The concept of testing whether official action was covered by qualified immunity was first raised in Siegert v. Gilley (1991), where the Supreme Court affirmed a dismissal of a lawsuit due to a lack of clear demonstration that a constitutional right had been violated.
Qualified immunity has been a controversial topic, with organisations like the ACLU and the NAACP Legal Defense Fund working to restrict or eliminate it. Critics argue that it has become a tool to let police brutality go unpunished and deny victims their constitutional rights. Supporters, however, argue that it protects government officials from financial burdens and harassment when acting in good faith in legally uncertain situations.
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Free speech and the First Amendment
The First Amendment of the United States Constitution guarantees several freedoms, including freedom of speech, freedom of religion, freedom of the press, and the right to assemble. It states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The First Amendment protects freedom of speech, but the exact boundaries of what constitutes protected speech have been the subject of much debate and numerous court cases. For example, in Tinker v. Des Moines (1969), the Court ruled that students have the right to wear black armbands to school to protest a war. Similarly, in Texas v. Johnson (1989), the Court upheld the right to engage in symbolic speech, such as burning the flag in protest. In Cohen v. California (1971), the Court ruled that even offensive words and phrases used to convey political messages are protected under the First Amendment.
However, the First Amendment does not provide absolute protection for all forms of speech. Certain types of speech, such as inciting imminent lawless action (Brandenburg v. Ohio, 1969), distributing obscene materials (Roth v. United States, 1957), or making obscene speeches in a school setting (Hazelwood School District v. Kuhlmeier, 1988), have been deemed unprotected by the First Amendment.
In recent years, there has been a debate over the doctrine of qualified immunity, which shields government officials from liability for violating constitutional rights if the law was not clearly established at the time of their conduct. This has led to criticism and calls for reevaluation, especially in the context of free speech cases involving school officials and law enforcement officers.
The First Amendment's protection of free speech extends beyond just words and includes symbolic actions and the right to not speak. It is a cherished value in the United States, and the Supreme Court has played a crucial role in interpreting and defining the scope of this fundamental right.
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The First Amendment and the right to protest
The First Amendment to the United States Constitution protects the right to free speech and assembly, which includes the right to protest. This right is not absolute, however, and there are certain limitations and restrictions on protests that have been deemed constitutional.
The text of the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This means that individuals have the right to express their views and assemble peacefully, whether in the form of protest or otherwise.
The Supreme Court has clarified that this right to assembly protects the right to gather together and protest on public property. This includes streets, sidewalks, parks, and other public spaces. The right to protest is strongest in these "traditional public forums", but it may also extend to other public property with certain limitations. For example, individuals generally have the right to protest on plazas in front of government buildings as long as they do not block access or interfere with the intended use of the property.
While the First Amendment protects the right to protest, it is not without its restrictions. The Supreme Court has established that time, place, and manner restrictions on protests are generally constitutional as long as they are content-neutral and do not interfere with effective communication. For example, restrictions on the route of a march or sound equipment may be permissible for traffic control or public safety reasons. Additionally, the government may lawfully stop a protest that becomes violent or intimidating, as the right to assemble is intended for peaceful gatherings.
The right to protest also applies to public college campuses, which are treated as public property. However, private colleges and universities are not bound by the same First Amendment constraints and may set their own rules and policies regarding protests and free speech. The extent of First Amendment protections in free speech cases has been questioned, and there have been instances where government officials have been granted qualified immunity in First Amendment lawsuits.
In conclusion, the First Amendment protects the right to protest and assemble peacefully, but this right is subject to certain limitations and restrictions. Individuals have the strongest rights to protest in traditional public forums, but protests in other locations may be subject to content-neutral time, place, and manner restrictions. While the government may not prohibit peaceful protests, it may intervene in cases of violence, intimidation, or interference with public safety. Understanding these boundaries is essential for exercising the right to protest while respecting the rights of others.
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The First Amendment and freedom of religion
The First Amendment to the United States Constitution includes the Establishment Clause and the Free Exercise Clause, which concern freedom of religion. The Establishment Clause prohibits the government from establishing an official religion or favouring one religion over another. The Free Exercise Clause protects the right of individuals to practice their religion without government interference. These clauses ensure religious freedom and prevent religious discrimination by the government.
The First Amendment has been interpreted by the Supreme Court in several cases involving freedom of religion. For example, in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court ruled that denying a public benefit on the basis of religious nature violates the Free Exercise Clause. Similarly, in Espinoza v. Montana Department of Revenue (2020), the Court held that the Free Exercise Clause forbids a state from discriminating against religious schools in funding programmes solely because of their religious status. The follow-up case, Carson v. Makin (2022), reaffirmed this interpretation of the Free Exercise Clause.
In addition to these cases, the Supreme Court has also addressed the issue of free speech in relation to religion. In Texas v. Johnson (1989), the Court protected the act of flag-burning as a form of expression, even though it may be considered offensive to some. This case demonstrated the Court's commitment to upholding the freedom of expression, even in controversial cases.
While the First Amendment guarantees freedom of religion and speech, it is not absolute. There are limitations to these freedoms, as illustrated in cases such as Roth v. United States (1957) and Chaplinsky v. New Hampshire (1942). Additionally, the Supreme Court has ruled that government officials may be entitled to qualified immunity in First Amendment cases. This means that officials may not be held liable for violating constitutional rights if the specific right was not clearly established at the time of their conduct.
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The First Amendment and freedom of association
The First Amendment to the United States Constitution protects various freedoms, including freedom of speech, freedom of religion, freedom of the press, and the right to assemble and petition the government. While the First Amendment does not explicitly mention a right to freedom of association, the Supreme Court has implied this right as it gives effect to other First Amendment freedoms. This freedom of association includes the right to associate or affiliate with a group and exercise First Amendment rights.
The Supreme Court has long held that the First Amendment's protection of free speech includes freedom of association. This freedom of association also prohibits laws that require groups to include individuals with conflicting ideological beliefs, as this would violate the group members' freedom of association. For example, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the Court held that compelling groups to include individuals with differing beliefs can violate the freedom of association.
The Court has also recognised that compelling disclosure of one's associations can inhibit the exercise of First Amendment rights, particularly where such disclosure could subject an individual to threats or other negative consequences. In NAACP v. Claiborne Hardware Co. (1982), the Court held that holding an organisation liable for unlawful conduct it did not authorise or ratify would impermissibly burden the rights of political association.
The freedom of association also extends to intimate association, which refers to groups comprised of highly personal relationships, such as family relationships. Some courts place the right to intimate association under the Due Process Clause of the Fourteenth Amendment, while others view it as falling under the First Amendment. In Roberts v. United States Jaycees (1984), the Supreme Court addressed the concept of intimate association, ruling that Minnesota's interest in eradicating gender discrimination outweighed the right of male members in social clubs to associate exclusively with males.
The freedom of association also applies to political parties and their ability to set their own rules and govern their internal affairs. For example, in Tashjian v. Republican Party of Connecticut (1986), the Court ruled that the Republican Party could invite independent voters to participate in its primary elections without violating the First Amendment. Similarly, in California Democratic Party v. Jones (2000), the Court held that a state law mandating open primaries violated the associational rights of political parties.
In conclusion, the freedom of association is an indispensable means of preserving other First Amendment freedoms. It encompasses various types of associations, including expressive association, intimate association, and political association. The Supreme Court has recognised that compelling disclosure of associations and requiring groups to include certain individuals can infringe on the freedom of association.
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Frequently asked questions
Qualified immunity is a legal doctrine that protects government officials from lawsuits alleging that they violated a plaintiff's rights. It only allows suits where officials violated a "clearly established" statutory or constitutional right.
While qualified immunity does not directly violate the First Amendment, critics argue that it poses a danger to expressive freedom. By granting qualified immunity to officials who violate the First Amendment, courts are not holding officials accountable for abusing their power to punish speakers they dislike.
In Wood v. Moss (2014), the U.S. Supreme Court ruled that Secret Service agents were entitled to qualified immunity when they removed protestors away from then-President George W. Bush. The Court similarly ruled in Reichle v. Howards (2012) and Morse v. Frederick (2007) that Secret Service agents and a high school principal were entitled to qualified immunity.
Courts first analyze whether a government official has violated a constitutional right. If there is a violation, the court then determines whether that right was "clearly established" at the time of the alleged conduct.
Yes, Justice Clarence Thomas wrote in a statement regarding Hoggard v. Rhodes (2021) that the doctrine of qualified immunity needed to be reevaluated. He argued that school officials who have ample time to make "calculated decisions" are different from police officers who have to make split-second decisions that might infringe on constitutional rights.
