The 5th circuit’s logic creates a feedback loop, which Sotomayor referenced in her dissenting opinion. Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
Qualified immunity requires that a right be “clearly established” for officers to be held liable. But when a law has never been enforced, there’s by definition no case law saying enforcement would be unconstitutional. So the first person targeted under any dormant or unconstitutional statute has no remedy.
The 5th Circuit reasoning that the journalist “benefited” through minor advertising revenue and free meals from readers is exceptionally weak and implies that journalism done for any compensation, weakens 1st amendment protections.
I don't think Sotomayor's dissent is particularly convincing because you need a new law that hasn't been yet been invalidated for each instance of retaliation against journalists or general 1A violations. And plugging this loophole with QI would put police in a weird situation where they're having to best guess based on some legal test if a law is constitutional or else open themselves to a lawsuit. I would be happy if this loophole could be plugged cleanly but I think the harm is theoretical enough that the 5th circuit's ruling is acceptable. I would rather a streamlined system to strike these laws down without needing to have them be enforced first rather than messing with QI. Then the ACLU and the likes can file a bunch of lawsuits making the QI issue moot as they'll already be declared unconstitutional before they're ever used.
>Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
...Uh... From my understanding, a court declaring a statute unconstitutional basically makes the statute in question retroactively never a law. That kind of determination absolutely creates precedent. Precedent isn't something that only happens once you hit the Supreme Court. This may be me quibbling on your choice of words, but if a court rules an application of a statute unconstitutional, then the specific details might be ruled out by precedent, but the statute may still stand. In that case Sotomayor is right. Qualified Immunity basically gives the Executive one reusable get out of jail free card.
Note though, qualified immunity is a recent thing, and there are laws on the books criminalizing deprivation of constitutional rights under color of law. I.e., officials using their position to do unconstitutional shit used to actually be a cause for action all it's own. Now, why we don't use it more, that's a lawyer question. I'm just an idiot who read a legal research book once.
The lack of an uproar about this from the "free speech" crowd that came down with a fury whenever it was "woke" that forbid speech, tells us it was never about free speech at all. It was misogyny and bigotry and some of those might not even be aware of that.
Free speech in the US is way worse now than it has been before Trump and it needs to be defended.
Qualified immunity requires that a right be “clearly established” for officers to be held liable. But when a law has never been enforced, there’s by definition no case law saying enforcement would be unconstitutional. So the first person targeted under any dormant or unconstitutional statute has no remedy.
The 5th Circuit reasoning that the journalist “benefited” through minor advertising revenue and free meals from readers is exceptionally weak and implies that journalism done for any compensation, weakens 1st amendment protections.
...Uh... From my understanding, a court declaring a statute unconstitutional basically makes the statute in question retroactively never a law. That kind of determination absolutely creates precedent. Precedent isn't something that only happens once you hit the Supreme Court. This may be me quibbling on your choice of words, but if a court rules an application of a statute unconstitutional, then the specific details might be ruled out by precedent, but the statute may still stand. In that case Sotomayor is right. Qualified Immunity basically gives the Executive one reusable get out of jail free card.
Note though, qualified immunity is a recent thing, and there are laws on the books criminalizing deprivation of constitutional rights under color of law. I.e., officials using their position to do unconstitutional shit used to actually be a cause for action all it's own. Now, why we don't use it more, that's a lawyer question. I'm just an idiot who read a legal research book once.
Free speech in the US is way worse now than it has been before Trump and it needs to be defended.