FIRE Supreme Court amicus brief pushes back on qualified immunity for First Amendment violations

Rights need remedies. This is the central point FIRE argued in an amicus curiae brief it filed in support of Anthony Novak’s request for the U.S. Supreme Court to hear his case. Novak created a Facebook page parodying his local police department. Instead of taking a joke, cops arrested him for electronically “disrupting” or “interfering” with police operations, as some members of the public had contacted police to alert them to the parody.  

Novak’s parody is clearly protected by the First Amendment. After a jury acquitted him of disrupting public services, Novak filed a civil suit against the city and the officers involved in his arrest. However, both the district court and U.S. Court of Appeals for the Sixth Circuit let the officers off the hook. Why? Qualified immunity, a judicial doctrine that routinely denies citizens a remedy for constitutional violations. Even for the most obvious First Amendment violations, courts often grant government officials qualified immunity just because they were the first official to behave badly in a particular way. (FIRE also filed an amicus brief in support of Novak in the Sixth Circuit).

Now, Novak is asking the Supreme Court to review the Sixth Circuit’s decision denying him a remedy.

It defies the heart of our constitutional order to deny citizens like Novak a remedy just because no official in the past so blatantly violated the First Amendment.

FIRE explained in its brief that, throughout our history, we’ve seen rogue public officials — from police to college administrators — violate well-established First Amendment rights far too often. Whether banishing a student group because of their conservative political advocacy, firing a professor for posting antifascist views to his personal Facebook page, retaliating against a student newspaper after it criticized the administration, or handcuffing a citizen who criticized the government at a city council meeting and charging him with disorderly conduct, thin-skinned public officials can be alarmingly quick to violate clear and longstanding First Amendment protections. 

But just recognizing that an official violated the First Amendment can be for naught, if those who are unconstitutionally fired, censored, or otherwise silenced have no means to hold those officials accountable. When deciding whether to grant qualified immunity, courts must decide whether the victim’s constitutional right at issue was “clearly established” at the time the official violated it. But to prove a right was “clearly established,” courts often demand that citizens show a prior court decision with identical facts — even when the constitutional violation is obvious to all. 

As FIRE wrote in its brief: “It defies the heart of our constitutional order to deny citizens like Novak a remedy just because no official in the past so blatantly violated the First Amendment. Both citizens and the Constitution itself expect courts to protect free expression, not officials who trample it.”

We asked the Court to protect free expression against obvious First Amendment violations.

FIRE urged the Supreme Court to hear Novak’s case and seize the opportunity to cure the problem of lower courts granting qualified immunity for officials who blatantly violate the First Amendment.

We asked the Court to protect free expression against obvious First Amendment violations in two ways. First, by reaffirming that established First Amendment principles are enough to give “fair warning” of an obvious constitutional violation — even without identical  precedent. And second, by making clear that the case for qualified immunity fades when officials violate First Amendment rights outside urgent situations. 

After all, the rationale for granting qualified immunity to a police officer engaged in hot pursuit of a suspect weakens significantly when applied to an official who has more time to make a calculated choice.

You can read FIRE’s full brief here.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).