throbber
No. 22-842
`
`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.
`
`
`
`

`

`13
`
`
`
` 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.
`
`
`
`

`

`
`
`14
`
`
` 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
`
`
`
` “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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket