`
`IN THE
`Supreme Court of the United States
`————
`THE NATIONAL RIFLE ASSOCIATION OF AMERICA,
`Petitioner,
`
`v.
`
`MARIA T. VULLO, BOTH INDIVIDUALLY AND IN HER
`FORMER OFFICIAL CAPACITY,
`Respondent.
`
`————
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Second Circuit
`————
`BRIEF OF AMICUS CURIAE FOUNDATION
`FOR INDIVIDUAL RIGHTS AND EXPRESSION
`IN SUPPORT OF PETITIONER
`————
`JOHN F. BASH
`Counsel of Record
`ISABEL PERAZA
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`1300 I St. NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`johnbash@quinnemanuel.com
`isabelperaza@quinnemanuel.com
`
`DARPANA SHETH
`ABIGAIL E. SMITH
`FOUNDATION FOR INDIVIDUAL
`RIGHTS AND EXPRESSION
`510 Walnut Street
`Suite 1250
`Philadelphia, PA 19106
`(215) 717-3473
`darpana.sheth@thefire.org
`abby.smith@thefire.org
`
`Counsel for Amicus Curiae
`[Additional Counsel Listed On Inside Cover]
`April 5, 2023
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`
`
`DAN SCHWARTZ
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`191 N. Wacker Dr.
`Suite 2700
`Chicago, IL 60606
`(312) 705-7400
`danielschwartz@
`quinnemanuel.com
`
`BEN CARROLL
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue
`22nd Floor
`New York, New York 10010
`(212) 849-7000
`benjamincarroll@
`quinnemanuel.com
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`
`
`Page
`
`Table Of Authorities ................................................... ii
`
`Interest Of Amicus Curiae .......................................... 1
`
`Introduction And Summary Of Argument ................. 2
`
`Argument ..................................................................... 3
`
`Are
`Censorship
`Informal
`I. Systems Of
`Proliferating On University Campuses ................ 3
`
`II. Qualified Immunity Should Be Unavailable
`For Calculated First Amendment Violations...... 14
`
`Conclusion ................................................................. 18
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Anderson v. Creighton,
`483 U.S. 635 (1987) .............................................. 14
`
`Backpage.com, LLC v. Dart,
`807 F.3d 229 (7th Cir. 2015),
`cert. denied, 137 S. Ct. 46 (2016) .......................... 2
`
`Bantam Books, Inc. v. Sullivan,
`372 U.S. 58 (1963) ...................................... 2, 3, 4, 8
`
`Flores v. Bennett,
`2022 WL 9459604 (E.D. Cal. Oct. 14, 2022) ......... 5
`
`Hoggard v. Rhodes,
`141 S. Ct. 2421 (2021) .......................................... 15
`
`Intervarsity Christian Fellowship/USA v.
`Univ. of Iowa, 5 F.4th 855
`(8th Cir. 2021) ................................................ 15, 16
`
`Rivas-Villegas v. Cortesluna,
`142 S. Ct. 4 (2021) ................................................ 14
`
`Speech First, Inc. v. Schlissel,
`939 F.3d 756 (6th Cir. 2019) .............................. 5, 8
`
`Villarreal v. City of Laredo,
`44 F.4th 363 (5th Cir. 2022) ................................ 16
`
`
`
`Other Sources
`
`FIRE, Bluefield State University: President Warns
`Faculty He Will Retaliate Against Them For
`Criticizing Him .................................................... 13
`
`(ii)
`
`
`
`(iii)
`
`
`
` TABLE OF AUTHORITIES – continued
`
`FIRE, Central Washington University: Student
`Media Face Defunding Threat, Onerous
`Interview Practices ............................................... 12
`
`FIRE, Enacted Free Speech Statutes –
`California ............................................................. 10
`
`FIRE, First National Survey of ‘Bias Response
`Teams’ Reveals Growing Threat to Campus
`Free Speech (Feb. 7, 2017) ................................. 8, 9
`
`FIRE, LAWSUIT: FIRE Sues Texas University
`President Illegally Blocking Charity Drag
`Show ..................................................................... 13
`
`FIRE, Letter to Central Michigan University
`President Michael Rao (Mar. 16, 2007) ............... 11
`
`FIRE, Letter to LSU Interim Chancellor
`William Jenkins (Nov. 11, 2004) ......................... 11
`
`FIRE, Repressive Executive Order from UNC
`Chapel Hill Student Government Cuts Off
`Funding for Pro-life Individuals, Causes
`(July 28, 2022) ...................................................... 12
`
`FIRE, Resident Assistants Called the Cops on
`Students Playing an ‘Offensive’ Video Game
`at University of Maryland ................................... 10
`
`FIRE, Rutgers Law Student Government to
`Student Groups: Promote Critical Race Theory
`or Lose Funding (May 17, 2021) .......................... 12
`
`FIRE, Spotlight on Speech Codes 2023 ...................... 5
`
`FIRE, Stanford University: Student Reported for
`Reading Adolf Hitler’s Autobiography, “Mein
`Kampf” .................................................................. 10
`
`
`
`
`
`(iv)
`
`
`
` TABLE OF AUTHORITIES – continued
`
`FIRE, Tulane University: Student Investigated for
`Op-Ed Supporting Kanye West .............................. 6
`
`FIRE, University of California at Irvine:
`Administrators Suppress Speech in Support of
`Graduate Student Strike with Vague Policy ......... 6
`
`Fitzgerald, Rick, University Clarifies Definition
`of Harassment, Bullying, UNIVERSITY RECORD
`(June 11, 2018) ....................................................... 5
`
`Lukianoff, Greg & Adam Goldstein, Catching Up
`with ‘Coddling’ Part Eleven: The Special Problem
`of ‘Bias Response Teams’, FIRE
`(Mar. 11, 2021) ....................................................... 7
`
`Steinbaugh, Adam & Alex Morey, Professor
`Investigated for Discussing Conflicting
`Viewpoints, 'The Coddling of The American
`Mind' (June 20, 2016) ............................................ 9
`
`Vermont State Colleges System, Harassment
`and Related Unprofessional Conduct
`(Aug. 12, 2020) ....................................................... 5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`INTEREST OF AMICUS CURIAE
`
`The Foundation for Individual Rights and Expres-
`sion (FIRE) is a nonpartisan, nonprofit organization
`dedicated to defending the individual rights of all
`Americans to free speech and free thought—the essen-
`tial qualities of liberty. Because colleges and universi-
`ties play an essential role in preserving free thought,
`FIRE places a special emphasis on defending these
`rights on our nation’s campuses. Since 1999, FIRE has
`successfully defended the rights of
`individuals
`through public advocacy, strategic litigation, and par-
`ticipation as amicus curiae in cases that implicate ex-
`pressive rights under the First Amendment. See, e.g.,
`Brief of FIRE as Amicus Curiae in Support of Peti-
`tioner, Kennedy v. Bremerton Sch. Dist., 142 S. Ct.
`2407 (2022); Brief of FIRE as Amicus Curiae in Sup-
`port of Respondents, Mahanoy Area Sch. Dist. v. B.L.,
`141 S. Ct. 2038 (2021). It currently represents plain-
`tiffs in lawsuits seeking compensation for First
`Amendment violations under 42 U.S.C. § 1983.
`
`Given its decades of experience defending freedom
`of expression, FIRE is keenly aware that public offi-
`cials too often misuse their power through threats and
`other informal mechanisms of coercion to stifle contro-
`versial speakers and impose ideological conformity.
`FIRE submits this brief to urge this Court to reverse
`the alarming decision of the Second Circuit, which
`held that petitioner had failed to state a viable claim
`despite detailed allegations that a powerful New York
`state official threatened action against regulated en-
`tities that associated with petitioner because she op-
`posed petitioner’s political advocacy. That holding will
`embolden other officials—including college and
`
`1
`
`
`
`2
`
`
`
` university administrators—to establish and maintain
`informal censorship regimes that target disfavored
`points of view.1
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`
`In the decision below, the Second Circuit held that
`a complaint alleging that a New York state official
`made a series of thinly veiled threats to regulated fi-
`nancial entities to pressure them to sever ties with a
`politically disfavored group could not proceed past the
`pleadings stage. For reasons persuasively stated in
`the petition for a writ of certiorari, that holding con-
`flicts with this Court’s decision in Bantam Books, Inc.
`v. Sullivan, 372 U.S. 58 (1963), and the Seventh Cir-
`cuit’s decision in Backpage.com, LLC v. Dart, 807 F.3d
`229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016).
`The decision below is irreconcilable with the basic
`purpose of the First Amendment: to prevent govern-
`mental officials from wielding their powers to stifle
`free discourse. On those grounds alone, the decision
`warrants further review.
`
`The decision also warrants review for two other
`reasons. First, what is alleged to have occurred in
`New York is not limited to political interest groups
`like petitioner. Throughout the country, university
`students and faculty find themselves subject to “sys-
`tem[s] of informal censorship,” Bantam Books, 372
`
`
`1 FIRE affirms that no counsel for a party authored this
`brief in whole or in part, and that no person other than
`FIRE or its counsel contributed money intended to fund the
`preparation or submission of this brief. FIRE provided
`timely notice to counsel for all parties under Rule 37.2.
`
`
`
`
`
`3
`
`
`
` U.S. at 71, which discourage open debate and impose
`ideological conformity, even when couched in neutral-
`sounding language.
`
`Second, the decision below held that even if the
`New York official had “engaged in unconstitutional[ly]
`threatening or coercive conduct,” she would be pro-
`tected by qualified immunity. Pet. App. 34. But as
`Justice Thomas has explained, qualified immunity
`should not shield public officials from liability for con-
`sidered policy decisions and regulatory actions. This
`case presents a good opportunity for the Court to clar-
`ify that qualified immunity does not reach such delib-
`erate action.
`
`ARGUMENT
`
`Informal Censorship Are
`I. Systems Of
`Proliferating On University Campuses
`
`Perhaps nowhere is free speech under a more sus-
`tained attack than on public university campuses—fo-
`rums where free discourse and open debate should be
`cultivated, not stifled. Through vague, neutral-sound-
`ing terms like “bias” and “harassment,” university
`policies give administrators, government officials, and
`even students themselves wide authority to investi-
`gate, threaten, and sanction students and faculty that
`hold disfavored viewpoints. As a consequence, young
`Americans are being educated in an environment of
`fear and conformity that is irreconcilable with our vi-
`brant, pluralistic democracy.
`
`These abuses of power call out for this Court to re-
`affirm that courts must “look through forms to the
`substance and recognize that informal censorship” vi-
`olates the rights of free speech and expressive
`
`
`
`
`
`4
`
`
`
` association just as much as formal prohibitions. Ban-
`tam Books, 372 U.S. at 67. In Bantam Books, the
`Court considered a state commission that would notify
`booksellers that they were selling “objectionable”
`books and then circulate copies of the objectionable
`books to police departments. Id. at 61-63. The Court
`held that the Commission was violating the First
`Amendment through “informal censorship.” Id. at 71.
`Although the books had “not been seized or banned by
`the State” and “no one ha[d] been prosecuted for their
`possession or sale,” the Commission’s “informal sanc-
`tions”—i.e., “the threat of invoking legal sanctions and
`other means of coercion, persuasion, and intimida-
`tion”—amounted to “a system of prior administrative
`restraints.” Id. at 67, 70.
`
`Despite this Court’s holding in Bantom Books, uni-
`versity administrators now employ numerous means
`of “coercion, persuasion, and intimidation” to suppress
`speech that they deem objectionable:
`
`Speech codes. Six decades after progressive stu-
`dents launched the Free Speech Movement at the Uni-
`versity of California at Berkeley, a large majority of
`university students are subject to restrictive speech
`codes, a trend that began in the 1980s and 1990s. A
`FIRE study in 2022 found that 86% of colleges and
`universities surveyed have put in place speech policies
`that hinder free discourse compared to what is per-
`missible in society at large. FIRE, Spotlight on Speech
`Codes 2023.2
`
`
`2 Available at https://www.thefire.org/research-learn/spot-
`light-speech-codes-2023.
`
`
`
`
`
`
`
`5
`
`
` Many of these codes are exceptionally broad. For
`example, until successful litigation forced it to narrow
`its speech code, the University of Michigan threatened
`students with sanctions and expulsion for “harass-
`ment,” and it defined that term to include creating an
`“unpleasant” situation for another person. See, e.g.,
`Speech First, Inc. v. Schlissel, 939 F.3d 756, 761-62
`(6th Cir. 2019) (University of Michigan); Rick Fitzger-
`ald, University Clarifies Definitions of Harassment,
`Bullying, UNIVERSITY RECORD (June 11, 2018).3 Simi-
`larly, the Vermont State Colleges System defines
`“harassment” as conduct that has the “the purpose or
`effect” of objectively and substantially interfering
`with a student’s educational performance and states
`that harassment includes “negative references to cus-
`toms related to . . . protected categories.” Vermont
`State Colleges System, Non-Discrimination and Pre-
`vention of Harassment and Related Unprofessional
`Conduct 3-4 (Aug. 12, 2020).4
`
`Such vague and capacious restrictions on speech
`naturally invite administrators to punish students
`who advance views that are disfavored by the admin-
`istration or fall outside of the mainstream of the uni-
`versity community. For example, in November 2021,
`school administrators at Clovis Community College, a
`public institution, tore down anti-communist flyers
`posted by the college’s Young Americans for Freedom
`chapter (a conservative student group) because they
`made students “uncomfortable,” and restricted the
`
`
`3 Available at https://record.umich.edu/articles/u-m-clari-
`fies-definitions-harassment-bullying/.
`
`4 Available at www.vsc.edu/wp-content/uploads/2020/08/
`Policy-311-Revised-for-08-12-20-1-1.pdf.
`
`
`
`
`
`6
`
`
`
` group’s ability to post pro-life flyers. Flores v. Bennett,
`2022 WL 9459604, at *2 (E.D. Cal. Oct. 14, 2022)
`(granting a preliminary injunction to the students,
`represented by FIRE). And earlier this year, Tulane
`University opened an investigation into a student for
`arguing in an op-ed that the controversial rapper
`Kanye West (now known as Ye) was right to wear a
`jacket reading “White Lives Matter” and should not
`have been “canceled” for making comments that were
`widely condemned as anti-Semitic. FIRE, Tulane Uni-
`versity: Student Investigated for Op-Ed Supporting
`Kanye West.5 While Tulane is a private university, it
`makes numerous commitments to free expression for
`its students that it violated by investigating a student
`for “caus[ing] much distress” on campus with an op-
`ed. Id.
`
`Likewise, late last year, the University of Califor-
`nia at Irvine prevented student governments from us-
`ing a university email platform to support striking
`graduate students, claiming that it violated a policy
`against “political” speech on the platform. FIRE, Uni-
`versity of California at Irvine: Administrators Sup-
`press Speech in Support of Graduate Student Strike
`with Vague Policy.6 Such vague, undefined speech re-
`strictions enable administrators to advance their own
`interests by silencing student expression.
`
`
`5 Available at https://www.thefire.org/cases/tulane-uni-
`versity-student-investigated-op-ed-supporting-kanye-
`west.
`
`6 Available at https://www.thefire.org/cases/university-
`california-irvine-administrators-suppress-speech-support-
`graduate-student-strike.
`
`
`
`
`
`
`
`7
`
`
` Bias Response Teams. Universities across the
`country now employ so-called “Bias Response Teams”
`to encourage students to formally report fellow stu-
`dents or faculty members whenever they perceive that
`their speech is “biased.” The inevitable result is to
`chill expressive activity and candid conversations not
`only in the classroom and other public forums, but
`also in private interactions on campus—a state of af-
`fairs more reminiscent of Soviet police states than an
`American university.
`
`The actual operation of Bias Response Teams in
`practice makes distressingly clear how administrators
`can use them to squelch disfavored views on, for ex-
`ample, race-conscious admissions, transgender rights,
`or immigration policy. See generally Greg Lukianoff &
`Adam Goldstein, Catching Up with ‘Coddling’ Part
`Eleven: The Special Problem of ‘Bias Response Teams’,
`FIRE (Mar. 11, 2021).7 As the Sixth Circuit explained
`in describing the University of Michigan’s Bias Re-
`sponse Team, when a student reports a fellow student
`for bias, the Bias Response Team will (at the com-
`plainant’s request) invite the offending party to “vol-
`untarily meet” with a member of the Bias Response
`Team. Speech First, 939 F.3d at 762. Although the tar-
`get is not formally required to meet with the Bias Re-
`sponse Team, the Team has authority to refer that
`student to the police or to university administrators.
`Id. at 762-763. The Bias Response Team also “main-
`tains a log of reported bias incidents.” Id. at 762.
`
`
`7 Available at https://www.thefire.org/news/blogs/eter-
`nally-radical-idea/catching-coddling-part-eleven-special-
`problem-bias-response-teams.
`
`
`
`
`
`
`
`8
`
`
` The chilling effect of this arrangement—in which
`students report each other for disfavored or offensive
`speech—cannot be understated. A college sophomore
`called in for a meeting with administrators for advo-
`cating for aggressive enforcement of immigration laws
`will almost inevitably be deterred from expressing
`those views again, particularly given the implicit
`threat of expulsion or other sanctions. The request to
`meet with administrators is a barely concealed form
`of intimidation and coercion. As the Sixth Circuit has
`put it, “[b]oth the referral power and the invitation to
`meet with students objectively chill speech” because
`“a student who knows that reported conduct might be
`referred to police or [the school administration] could
`understand the invitation to carry the threat: ‘meet or
`we will refer your case.’” Speech First, 939 F.3d at 765.
`Indeed, “the very name ‘Bias Response Team’ sug-
`gests that the accused student’s actions have been
`prejudged to be biased.” Id. at 765. Bantam Books
`made crystal clear that these sorts of “informal sanc-
`tions” for protected activity violate the First Amend-
`ment. 372 U.S. at 67.
`
`Bias Response Teams are alarmingly common at
`American colleges. In a 2017 survey of 232 institu-
`tions, 167 identified officials or offices that receive and
`review reports of offensive speech. FIRE, First Na-
`tional Survey of ‘Bias Response Teams’ Reveals Grow-
`ing Threat to Campus Free Speech (Feb. 7, 2017).8 And
`a remarkable 42% of survey respondents listed law-
`enforcement personnel among the members of Bias
`
`
`8 Available at https://www.thefire.org/news/first-national-
`survey-bias-response-teams-reveals-growing-threat-cam-
`pus-free-speech.
`
`
`
`
`
`9
`
`
`
` Response Teams, even though offensive or biased
`speech is not a criminal offense, but rather constitu-
`tionally protected activity. Universities are quite lit-
`erally employing speech police. Id.
`
`The threat that Bias Response Teams will sup-
`press disfavored speech is far from theoretical. In
`2016, a Bias Response Team at the University of
`Northern Colorado, a public institution, investigated
`a professor who engaged students in a discussion
`about opposing viewpoints on various topics, includ-
`ing transgender rights. Adam Steinbaugh & Alex Mo-
`rey, Professor Investigated for Discussing Conflicting
`Viewpoints, ‘The Coddling of The American Mind’,
`FIRE (June 20, 2016).9 Another professor at the same
`university was investigated by the Bias Response
`Team for encouraging students to debate LGBTQ
`rights in the classroom, after a student objected that
`“other students are required to watch the in-class de-
`bate and hear both arguments presented.” Id.
`
`The mere existence of Bias Response Teams—and
`the implicit threat of condemnation and punishment
`that they inevitably engender—erodes free discourse.
`Earlier this year, two students at Stanford Univer-
`sity10 were reported for reading Mein Kampf. FIRE,
`
`
`9 Available at https://www.thefire.org/news/professor-in-
`vestigated-discussing-conflicting-viewpoints-coddling-
`american-mind.
`
`10 Stanford University, a private university, is bound to
`extend First Amendment and California Constitution free
`speech protections to its students under California’s Leon-
`ard Law. See FIRE, Enacted Free Speech Statutes – Cali-
`fornia, available at https://www.thefire.org/research-
`learn/enacted-campus-free-speech-statutes-california.
`
`
`
`
`
`10
`
`
`
` Stanford University: Student Reported for Reading
`Adolf Hitler’s Autobiography, “Mein Kampf.”11 And
`back in 2019, several students at the University of
`Maryland were questioned by police and referred to
`the Office of Student Conduct for writing offensive-to-
`some responses to the fill-in-the-blank video game
`“Quiplash,” a game designed to elicit off-color and of-
`ten satirical answers. FIRE, Resident Assistants
`Called the Cops on Students Playing an ‘Offensive’
`Video Game at University of Maryland.12 Even if these
`students ultimately faced no formal sanctions, the re-
`porting itself (encouraged by university policies) is a
`raw act of intimidation: Their experiences will un-
`doubtedly deter other students from reading con-
`demned books or playing controversial games on
`campus in the future.
`
`Restrictions on student groups. Public univer-
`sities have also put in place vague or general re-
`strictions on student groups and activities that allow
`administrators and others to punish ideological oppo-
`nents or protect their own interests.
`
`Under the guise of anti-discrimination policies, for
`example, universities have eroded students’ right to
`expressive association. The administration at Central
`Michigan University told a conservative political stu-
`dent group that under the university’s nondiscrimina-
`tion policy, the group could not exclude from
`
`11 Available at https://www.thefire.org/cases/stanford-uni-
`versity-student-reported-reading-adolf-hilters-autobiog-
`raphy-mein-kampf.
`
`12 Available at https://www.thefire.org/news/resident-as-
`sistants-called-cops-students-playing-offensive-video-
`game-university-maryland.
`
`
`
`
`
`11
`
`
`
` membership students who regarded the organization
`as a “hate group” and were explicitly plotting to join
`the group in order to dissolve it. FIRE, Letter to Cen-
`tral Michigan University President Michael Rao (Mar.
`16, 2007).13 Similarly, at Louisiana State University,
`the Muslim Students Association was told by the ad-
`ministration that in order to re-register, it would have
`to revise its constitution to prohibit discrimination
`based on, among other things, religion. FIRE, Letter
`to LSU Interim Chancellor William Jenkins (Nov. 11,
`2004).14 The organization contacted other religious
`student organizations who stated that they were not
`asked to make the same change. Id. When the group
`refused to adopt the clause, the university immedi-
`ately derecognized it and revoked all its privileges. Id.
`
`Universities also regularly permit student leaders
`themselves to compel ideological speech from their fel-
`low students. The student government president at
`the University of North Carolina at Chapel Hill cut off
`funding “to any individual, business, or organization”
`that advocates for pro-life causes. FIRE, Repressive
`Executive Order from UNC Chapel Hill Student Gov-
`ernment Cuts Off Funding for Pro-life Individuals,
`Causes (July 28, 2022).15 The Student Bar Association
`
`
` Available at https://www.thefire.org/research-
`
`13
`learn/fire-letter-central-michigan-university-president-
`michael-rao-march-16-2007.
`
` Available at https://www.thefire.org/research-
`
`14
`learn/fire-letter-lsu-interim-chancellor-william-jenkins-
`november-11-2004.
`
`15 Available at https://www.thefire.org/news/repressive-
`executive-order-unc-chapel-hill-student-government-cuts-
`funding-pro-life.
`
`
`
`
`
`12
`
`
`
` of Rutgers Law School amended its constitution to re-
`quire that any group applying for more than $250 in
`university funding “plan at least one . . . event that
`addresses their chosen topics through the lens of Crit-
`ical Race Theory, diversity and inclusion, or cultural
`competency,” forcing groups to promote messages
`with which they may disagree. FIRE, Rutgers Law
`Student Government to Student Groups: Promote Crit-
`ical Race Theory or Lose Funding (May 17, 2021).16
`
`In other instances, public university administra-
`tors have threatened student groups or faculty to ad-
`vance
`the administrators’
`own
`interests
`or
`idiosyncratic views. For example, at Central Washing-
`ton University, a university committee proposed de-
`funding the student newspaper after the editors
`criticized university departments for requiring prior
`review of questions posed to department employees.
`FIRE, Central Washington University: Student Media
`Face Defunding Threat, Onerous Interview Prac-
`tices.17 Last year, the president of Bluefield State Uni-
`versity threatened to retaliate against any faculty
`member who cast a vote of no confidence in his lead-
`ership. FIRE, Bluefield State University: President
`Warns Faculty He Will Retaliate Against Them for
`
`
`16 Available at https://www.thefire.org/news/rutgers-law-
`student-government-student-groups-promote-critical-
`race-theory-or-lose-funding.
`
`17 Available at https://www.thefire.org/cases/central-
`washington-university-student-media-face-defunding-
`threat-onerous-interview-practices.
`
`
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`13
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`
` Criticizing Him.18 Recently, at West Texas A&M Uni-
`versity, the president announced that he would cancel
`a student drag show based on his view of natural law,
`“even when the law of the land appears to require”
`him to allow the show to go forward. FIRE, LAWSUIT:
`FIRE Sues Texas University President Illegally Block-
`ing Charity Drag Show (Mar. 24, 2023).19
`
`* * *
`
`For the foregoing reasons, the question raised in
`the petition for a writ of certiorari is vitally important
`in the university setting. Granting review and rein-
`forcing the principle of Bantam Books would begin the
`process of rebuilding the Nation’s academic institu-
`tions as forums where students and faculty can chal-
`lenge deeply held beliefs and debate the most pressing
`national problems in an environment of open dis-
`course and freedom of thought.
`
`II. Qualified Immunity Should Be Unavailable
`For Calculated First Amendment Violations
`
`This case presents the opportunity for the Court to
`clarify that qualified immunity is not available for
`constitutional violations that are the product of delib-
`eration and considered choice—as opposed to, for ex-
`ample, split-second decisions that police officers make
`in the field.
`
`
`18 Available at https://www.thefire.org/cases/bluefield-
`state-university-president-warns-faculty-he-will-retaliate-
`against-them-criticizing.
`
`19 Available at https://www.thefire.org/news/lawsuit-fire-
`sues-texas-university-president-illegally-blocking-charity-
`drag-show.
`
`
`
`
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`14
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`
` Qualified immunity generally protects a govern-
`ment official from monetary liability for violating con-
`stitutional rights when the relevant legal principle
`was not “clearly established” at the time the violation
`occurred. Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7
`(2021). Its basic purpose is to avoid “the risk that fear
`of personal monetary liability and harassing litigation
`will unduly inhibit officials in the discharge of their
`duties.” Anderson v. Creighton, 483 U.S. 635, 638
`(1987). It is easy to see how that concern applies to
`rapid decision-making by law-enforcement officers:
`An officer faced with a dangerous situation cannot
`reasonably be expected to analyze whether a recent
`precedent of the regional circuit would be extended to
`a materially different factual scenario.
`
`But the concern has substantially less force for cal-
`culated policy decisions or enforcement actions like
`those alleged in the complaint in this case. When an
`official has time to consider the effects of the proposed
`course of action, evaluate alternative approaches, and
`take steps to minimize any impact on private liberties,
`there is little justification to bar victims from seeking
`compensation for violations of their constitutional
`rights. After all, business and individuals routinely
`face civil liability for violations of common-law rules
`or constructions of statutes that were not clearly es-
`tablished at the time the conduct took place. There is
`no apparent reason why government officials should
`receive more lenient treatment.
`
`In light of that disconnect between the purpose of
`qualified immunity and its application to calculated
`choices and policies, federal judges have recently be-
`gun to question the application of qualified immunity
`
`
`
`
`
`15
`
`
`
` in this context, particularly for violations of First
`Amendment rights.
`
`For example, in Hoggard v. Rhodes, 141 S. Ct. 2421
`(2021), the plaintiff “allege[d] that university officials
`violated her First Amendment rights by prohibiting
`her from placing a small table on campus near the stu-
`dent union building to promote a student organiza-
`tion,” instead confining her activity to a “Free
`Expression Area,” and then only with prior permis-
`sion. Id. at 2421 (Thomas, J., respecting the denial of
`certiorari). The court of appeals had held that the pol-
`icy was unconstitutional but that the officials who im-
`plemented it were entitled to qualified immunity. Id.
`at 2421-22.
`
`In a statement respecting the denial of certiorari,
`Justice Thomas pointedly asked “why should univer-
`sity officers, who have time to make calculated choices
`about enacting or enforcing unconstitutional policies,
`receive the same protection as a police officer who
`makes a split-second decision to use force in a danger-
`ous setting?” 141 S. Ct. at 2422. He noted that the
`Court had “never offered a satisfactory explanation to
`this question.” Id.
`
`Similarly, in Intervarsity Christian Fellowship/
`USA v. University of Iowa, 5 F.4th 855 (8th Cir. 2021),
`the Eighth Circuit considered the application of
`qualified
`immunity to a university
`that had
`deregistered a Christian student group for requiring
`its officers to affirm certain religious beliefs. Id. at
`861. While specifically “acknowledg[ing] that the
`intersection of the First Amendment and anti-
`discrimination principles can present challenging
`questions,” the Eighth Circuit denied qualified
`
`
`
`
`
`16
`
`
`
` immunity. Id. at 867. In so holding, it invoked Justice
`Thomas’s rhetorical question about why officials who
`make “‘calculated choices’” should receive the same
`protections as those who make split-second decisions.
`Id. (quoting Hoggard, 141 S. Ct. at 2422).
`
`In much the same vein, a panel of the Fifth Circuit
`recently sought to apply a more context-based
`approach to qualified immunity. In Villarreal v. City
`of Laredo, 44 F.4th 363 (5th Cir. 2022), vacated, 52
`F.4th 265, the court held that public officials who had
`allegedly conspired to arrest a journalist (now
`represented by FIRE) in retaliation for her reporting
`were not entitled to qualified immunity. 44 F.4th at
`369.20 Though acknowledging a lack of governing
`precedent involving materially identical facts, the
`court reasoned that “[t]here is a big difference
`between split second decisions by police officers and
`premeditated plans to arrest a person for her
`journalism . . . .” Id. at 371 (internal quotation marks
`omitted).
`
`This case presents an ideal vehicle for this Court
`to clarify that qualified immunity does not extend to
`considered choices and policies. As alleged in peti-
`tioner’s complaint, the former superintendent of the
`New York State Department of Financial Services
`used her regulatory power over insurance companies
`that partnered with petitioner to “coerce them into
`disassociating with [petitioner], in violation of its
`rights.” Pet. App. 3. She sent “Guidance Letters” to
`those companies, described “‘reputational risks’” if
`those companies did business with petitioner or
`
`20 The opinion in Villarreal was vacated after the Fifth
`Circuit granted en banc review, which remains pending.
`
`
`
`
`
`17
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`
`
` “similar gun promotion organizations,” id. at 10, and
`otherwise encouraged the companies to discontinue
`any association with petitioner. Id. She allegedly
`acted out of her “‘desire to levera