My new article, entitled Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe, has just been published in 17 Lewis & Clark L. Rev. 1019 (2013).
Here is the link to the complete article.
This is the abstract:
“In 1951 the Supreme Court interpreted Section 1983’s language for the first time in Tenney v. Brandhove. This case, which arose against the background of the Cold War, involved the First Amendment and legislative immunity. The majority opinion, authored by Felix Frankfurter, took a strong federalism stance, while Justice William Douglas wrote the sole dissent in favor of civil rights. Ten years later, in Monroe v. Pape, the Court handed down a second important Section 1983 decision. This time, seven years after Brown v. Board of Education, the Court stood strong for civil rights in a police brutality case. Justices Douglas and Frankfurter were pitted against each other once again, but this time Douglas authored the majority opinion and Frankfurter wrote a strong partial dissent on federalism grounds.
This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause and considered free speech and hate speech.
The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).
The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).
Distinguishing Between Procedural Due Process and Substantive Due Process
This post deals with procedural due process which focuses on fair and timely procedures. It is far less complicated and controversial than substantive due process which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.
Life, Liberty and Property Interests
Procedural due process may be implicated whenever the government threatens to take a life, liberty or property interest from an individual.
The meaning of a “life” interest is self evident. The meaning of property and liberty interests is more tricky. As a general matter, both are brought into existence by state and local law. However, whether they constitute property and liberty interests for procedural due process purposes is a matter of federal constitutional law.
For example, a mere expectation of continued employment by a terminable-at-will public employee is not a property interest because there is no “legitimate claim of entitlement.” In contrast, if that public employee has a contract and is terminated in the middle of that contract period without any kind of a hearing, then that may constitute a property interest triggering procedural due process protections.
Although it is too complicated to get into here, liberty interests may include an individual’s interest in not being imprisoned (from the tort of false imprisonment), in not having his or her physical integrity interfered with (from the tort of battery) and in not having his or her privacy invaded (from the tort of privacy)
What Kind of Hearing and When?
Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in.
Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings.
The best example of a pre-deprivation hearing with maximum procedural protections is a criminal trial. In contrast, pre-deprivation hearings directed at property interests do not necessarily have to be conducted by judges. Very often administrative proceedings are sufficient for procedural due process purposes so long as they provide the minimum protections described above: notice, the government’s evidence, the opportunity to respond and an impartial decision-maker.
Next: Substantive Due Process
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In early December 2013, I delivered a one and one-half hour presentation on section 1983 to the New Mexico Defense Lawyers Association (NMDLA).
This presentation covers the elements of the section 1983 claim, individual immunities (absolute and qualified) and local government liability. It also includes Tenth Circuit cases of relevance to this particular audience.
I refer during the presentation to an outline I provided to the NMDLA audience, but that outline is not necessary in order to learn from my video.
I hope you will find it of interest and useful.
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Certiorari Granted in Lane v. Franks
The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case. The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).
In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.
Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.
1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
2. Does qualified immunity preclude a claim for damages in such an action?
If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.
Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.
Lane will be argued and decided this Term.
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The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.
Here’s an excerpt:
The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 38,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 14 sold-out performances for that many people to see it.
I will be grading exams and papers and then taking a vacation. The blog will return next year.
All the best to my readers.
This is the fifth in a series of posts, intended for a general audience, discussing the Constitution. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution and addressed the Equal Protection Clause.
Today’s post deals with hate speech and that part of the First Amendment that declares: “Congress shall make no law … 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.”.
I want to emphasize three important take-away points at the outset. One is that the First Amendment protects us from the government; it does not apply to relations between private persons. Second, the First Amendment, like all individual rights in the Constitution, is not absolute. And last, freedom of speech has costs.
What is freedom of speech anyway? There is the joke told years ago by the Russian comedian Yacov Smirnoff. He was confronted by an American bragging about freedom of speech. Smirnoff retorted: “Big deal! We also have freedom of speech in Russia. What we don’t have is freedom after speech.”
One of the most controversial free speech issues involves hate speech, including but not limited to the anti-Semitic kind. Hate speech and anti-Semitism are major concerns in Europe and the Middle East and remain a nagging concern in the US as well. Hate speech can be defined as speech directed at a historically oppressed religious or racial minority with the intent to insult and demean. Hate speech undermines social attitudes and beliefs, it isolates its targets and it tends to silence them because they are often stunned and unable to respond. Hate speech also traumatizes (think of the effect it had on survivors and other Jews when the Nazis threatened to march in Skokie). We all know some of the hateful slurs that are too often directed against Jews, blacks, Latinos and Italians in this country.
What does the First Amendment, through interpretations by the Supreme Court, have to say about hate speech? The short answer is that the First Amendment prohibits government from regulating such speech altogether. This is a very different approach from that of countries in Western Europe that often prohibit such speech, including denials of the Holocaust.
But why should that be? After all, despite the children’s saying about sticks and stones, we know that words can in fact hurt and lead to terrible acts. Words have power. Words have costs.
One answer is that the First Amendment creates a marketplace of ideas in which everyone can participate. Everyone can try to sell his or her ideas to the marketplace and the buyers in the marketplace eventually decide which ideas have value and which do not, which ideas are truthful and which are not. We are all sellers and buyers in this marketplace.
What is the government’s role in this marketplace of ideas? Basically, the government must stay neutral; it must keep its hands off of the marketplace. The Enlightenment assumption—the assumption of the Framers of the Constitution—that underlies the marketplace of ideas is that people are ultimately rational, they may be persuaded by reason, even though emotions and passions play a major rule in political decision-making.
What kinds of ideas are out there in the marketplace of ideas? Political ideas, artistic ideas, scientific ideas, social ideas of all kinds, whether smart, crazy, far-out, brilliant, dangerous.
However, despite what I’ve just said, there are some communications that are not allowed in the marketplace of ideas. Obscene speech, for one, carefully defined by the Supreme Court, is excluded from the marketplace of ideas. Another kind of communication, child pornography, is also not allowed because its production involves child abuse. The reasons for these exceptions include history and the belief that these kinds of communications have little or no redeeming social value.
So now you’re thinking the following: if there are some exceptions under the First Amendment and its marketplace of ideas, why not also include hate speech as an exception? After all, hate speech surely has little or no redeeming social value. It insults, it demeans, it traumatizes, it silences and there is a consensus in American society that it is valueless at best and dangerous at worst. Why should government not be allowed to prohibit it?
The Supreme Court’s answer to this particular question is that even hate speech contains political ideas, however horrible these ideas may be. When you regulate such speech, you are also regulating ideas. Think of George Orwell’s Animal Farm and forbidden words. The Supreme Court has also made clear that just because speech offends people, this is never a justification under the First Amendment for punishing it. Furthermore, we are justifiably suspicious of government when it attempts to regulate speech and ideas. After all, government may have its own political agenda in regulating hate speech—which groups would be protected against hate speech and which not?
Finally, and perhaps most important, think about how the marketplace of ideas functions: even if hateful ideas are communicated, the theory (hope?) is that counter-speech will emerge to rebut it and to fight it. In other words, more speech rather than less is the remedy.
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