Qulaified Immunity Ruling's Potential Impact in First Amendment Litigation

In a brief essay on the First Amendment Center's website, David Hudson notes how the Supreme Court's recent ruling in Pearson v. Callahan may  affect First Amendment litigation. In a revision of the Court's prescribed approach to qualified immunity determinations, Pearson now permits courts reviewing constitutional torts to decide as a threshold matter whether the asserted constitutional claim is clearly established and, if it is not, immediately resolve the immunity question.  This sequence potentially allows a court to avoid determining whether the challenged conduct did violate the plaintiff's constitutional rights.  Writing for the Court, Justice Alito advises that first confronting and resolving the underlying allegation of unconstitutional behavior may be beneficial for the development of constitutional principles, but that determination will no longer be required as it had been under Saucier v. Katz.  As Hudson points out, Morse v. Frederick presented this question of whether a court needed to make the constitutional determination rather than deflecting that substantive question when the challenged official acts would not have been previously categorzied as the violation of a clearly established right. In Morse, Justice Breyer, concurring in part and dissenting in part, had recommended resolving the case by simply granting the principal's claim of qualified immunity, given her reasonable uncertainty as to her disciplinary prerogatives. Hudson foresees courts using the new opportunities to avoid the underlying constitutional questions in a number of developing First Amendment controversies, such as cases examining school officials' constitutional authority to impose school disciplinary sanctions for students' off-campus Internet activities.

JFB