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Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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