Free Speech

First Amendment and Off-the-Job Political Speech Criticizing Black Lives Matter Movement and "Thugs"

An interesting opinion from three Georgia Supreme Court Justices.

|The Volokh Conspiracy |

From the opinion of Georgia Supreme Court Justice Peterson concurring in Tucker v. Atwater (joined by Chief Justice Hines and Justice Blackwell), where the Georgia court declined to review a lower court decision:

This is a case about just how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their private lives. I am doubtful that it allowed the punishment imposed here. But the petitioner cannot prevail on the claims she actually brought even if her right to free speech was violated, and so I concur in the denial of the writ of certiorari.

Kelly Tucker, a public school teacher in Tift County, engaged in a written debate on Facebook regarding the Black Lives Matter movement. The exchange became heated and racially charged; after another participant addressed her with an epithet, Tucker posted a lengthy message dismissive of the movement and derogatory of "thugs." This message was plainly about a topic of public concern, with no obvious link to her employment in public education. In this procedural posture (reversal of the denial of summary judgment), we assume that Tucker posted the message on her own time and on her own computer, and without referencing her employment.

Nevertheless, people viewing the debate who disagreed with the viewpoint she expressed discovered she was a teacher and complained to a local elected official, Tucker's principal, and the local school superintendent. The school administration determined that the message Tucker posted was offensive and decided to punish her. They eventually suspended her for five days and required her to participate in diversity training. Tucker did not avail herself of her right of administrative appeal; instead, she filed a lawsuit against the superintendent and the school board chair alleging claims … for violation of her First Amendment rights.

The Court of Appeals held that the school officials were entitled to qualified immunity because they did not violate any clearly established law. I agree that there does not appear to be any clearly established law in this jurisdiction that the school officials violated. Indeed, Tucker doesn't cite a single case to that effect from this Court, the Eleventh Circuit, or the United States Supreme Court, which are the only courts that can clearly establish law for this jurisdiction, and I haven't found any. Accordingly, the school officials are entitled to qualified immunity, and I concur in the denial of the writ of certiorari. Nevertheless, I write separately to express my grave concerns that the school officials may well have violated Tucker's First Amendment rights.

The Court of Appeals observed that the familiar balancing test derived from Pickering v. Bd. of Ed. (1968) would apply to First Amendment claims by government employees like Tucker. And the court repeated common language from Pickering and its progeny about balancing the employee's interest in speaking against the government employer's interest in not having its employees' speech disrupt government's efficient functioning. But it's not obvious to me that the Pickering balancing test applies to public employee speech cases when the employee speaks on his or her own time about matters unrelated to his or her employment; or, at least, it's not obvious that the balancing test applies normally to potential disruption caused by public reaction to the employee speaker's viewpoint. Indeed, in other contexts, we'd dismissively label such disruption a heckler's veto and proudly disregard it. See Forsyth County v. Nationalist Movement (1992) ("Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.").

All but one of the decisions of the United States Supreme Court applying the Pickering balancing test has involved speech by a public employee either during the work day or in a manner or about a topic that implicated their employment. In contrast, in the one case not necessarily involving such speech, the Court gave the back of the hand to concerns of potential disruption caused by objections to viewpoints of employee speakers. See United States v. National Treasure Employees Union (1995) ("The speculative benefits the honoraria ban may provide the Government are not sufficient to justify this crudely crafted burden on respondents' freedom to engage in expressive activities."). The Supreme Court has since characterized NTEU as representing a distinct "line of cases" under which speech of government employees "on their own time on topics unrelated to their employment" is protected "absent some governmental justification far stronger than mere speculation in regulating it." This has raised a significant question as to how Pickering applies to speech by public employees that neither implicates employment nor occurs during the work day. See Randy J. Kozel, Free Speech and Parity: A Theory of Public Employee Rights, 53 Wm. & Mary L. Rev. 1985 (2012) ("What is not entirely clear is how the First Amendment treats speech that bears no connection, physical or conceptual, to the speaker's employment."); Mary-Rose Papandrea, The Free Speech Rights of Off-Duty Government Employees, 2010 BYU L. Rev. 2117 ("The Court's cases leave unclear what sort of First Amendment protection attaches to expressive activities of off-duty public employees. Specifically, it is unclear whether all such speech must involve a matter of public concern to receive any First Amendment protection at all and whether the degree to which the expression is related to work affects the strength of any such protection."). I do not propose an answer to that significant question here — I simply note that it exists, and that the existence of such a question should counsel government employers to act with considerably more caution in such cases than the Court of Appeals' opinion would suggest.

American courts have long been jealous guardians of the right to free speech. And at the core of the First Amendment's protection of speech is a firm command that government must not engage in viewpoint discrimination. Indeed, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Tucker's Facebook screed does not strike me as possessing any redeeming social value. But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing. Indeed, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." This "bedrock principle" is difficult to reconcile with allowing government to punish its employees for viewpoints they communicate wholly unrelated to their employment.

Government employers clearly have authority to control their employees in the course of their employment. But it is something else entirely to hold that government employers can punish their employees based on viewpoints expressed in private speech, as the school officials did here. It is far from obvious that the precedent of the Supreme Court requires us to allow such a thing.

[Footnote:] We don't reach that question here because the absence of clearly established law entitles the school officials to qualified immunity. But there's no reason why the next such case should face the same problem. Indeed, had Tucker simply administratively appealed her discipline, she could have asserted her First Amendment arguments without any question of qualified immunity arising.

[Footnote moved: I also note that Tucker has raised no claim under the Georgia Constitution's Speech Clause, which is textually different from the First Amendment. See Ga. Const. art. I, sec. I, para. V ("No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty."). We have interpreted the Georgia Speech Clause's identically worded predecessor as more protective of speech than the First Amendment in at least one context. See K. Gordon Murray Productions, Inc. v. Floyd (Ga. 1962) (holding prior restraint of movies valid under United States Constitution but invalid under Georgia Constitution).]

NEXT: After Stanford's Niall Ferguson Controversy, Free Speech Conservatives Need to Practice What They Preach

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  1. How should the plaintiff have written her complaint differently in order to get relief? And why has this judge declined to interpret her complaint as if she had done so?

    1. If she’s gone through an administrative appeal, qualified immunity would not have been an issue.

      1. She also failed to allege a government policy or custom permitting constitutional violations. The refusal to interpret her pleadings differently appears to be idiosyncratic to Georgia law, specifically a case called Schroeder.

  2. For the life of me, I cannot fathom why any attorney would fail to plead a claim under both the federal constitution and the applicable state’s constitution in every such case. Yes, some states interpret their constitutional protections coextensively with the federal, but they don’t all do so, and not in all cases, and you never know.

  3. IIRC, the *Forsyth* opnion referred to a “mob” in the context of counterprotesters against a Ku Klux style organization. Many of the counterprotesters were black.

    So this teacher got in trouble for referring to “thugs,” while the US Supreme Court gets to call an anti-Klan rally, with many black participants, a “mob”?

    Anyway, I thought the Thugs were the guys in Indiana Jones and the Temple of Doom.

    1. “You stole my heart and that’s what really hurts.”

    2. No, those were “Thugees”. Though “thug” does derive from them.

  4. Love that turn of phrase: “…the Court gave the back of the hand to concerns…”

    Dismissed! Now get oot, or ye’ll feel the back o’ me hand!

  5. Tucker’s Facebook screed does not strike me as possessing any redeeming social value.

    The Facebook screed:

    It’s turned into a race matter. What about the thugs that beat the father in his vehicle because he didn’t slow down. What about the thugs that shot the college baseball player because they were bored. The list can go on and on. If the dude hadn’t have stolen [sic], he would be alive. I think the signs should read, TAKE THE HOOD OFF YOUR HEAD, AND PULL UP YOUR DANG PANTS, AND QUIT IMPREGNATING EVERYBODY. I’m tired of paying for these sorry *&^ thugs . . . I would much rather my hard earned money that the government takes go to people who need it, such as abusive [sic] adults and children, not to mention the animals they beat and fight too . . . That’s all I’m saying. . .

    Why does this lack any redeeming social value? She isn’t saying that all blacks are thugs. She is referring to a group of people who exhibit behavior that she regards as thuggish, and is expressing her disapproval of their behavior, their dress, and what she sees as their propensity to be unconcerned about the consequences of their sexual activity. Is it without redeeming social value to suggest that there are people who have earned such criticism, and to suggest that they should change their ways, or is it the direct and blunt manner of her expression that removes any redeeming social value? Is it the use of the word “thug”?

    1. Haha – this is what you take issue with? The validity of the specifically declaimed as nonmaterial opinion that a rant that plays bingo with black stereotypes is not a good take?!

      1. Haha – this is what you take issue with? The validity of the specifically declaimed as nonmaterial opinion that a rant that plays bingo with black stereotypes is not a good take?!

        I’m not sure I follow your point. Are you saying that thuggish behavior should not be criticized because thuggish behavior is also a stereotype? Is it impermissible to comment on thuggish behavior?

        1. Are you saying that thuggish behavior should not be criticized because thuggish behavior is also a stereotype?

          You’re finally getting it. Just like it would have been racist to report on the pedophilia by Pakistanis in Rotherham, because it would have fed into stereotypes that Pakistanis are pedophiles.

          1. The Rotterham thing does point to some problems with British policies, procedures, and possibly culture.

            But the comment above is not saying ‘there are black thugs’ it is saying ‘blacks need to stop doing things I don’t like until they deal with there being so many black thugs.’

            Don’t hide an endorsement of racism behind ‘people are too afraid of being called racist’

            1. re: “the comment above … is saying …”

              No, it’s not.

              1. Actually, it is saying exactly what Sarcastr0 claims.

                Not to mention that wearing a hoodie, or even wearing your pants low, is not yet a crime.

                1. Actually, it is saying exactly what Sarcastr0 claims.

                  Not to mention that wearing a hoodie, or even wearing your pants low, is not yet a crime.

                  The comment is first criticizing thuggish behavior of a certain type:

                  What about the thugs that beat the father in his vehicle because he didn’t slow down. What about the thugs that shot the college baseball player because they were bored. The list can go on and on.

                  This, indeed, is saying that there are thugs and they need to stop it. Is there anything wrong about a person holding such an opinion? The comment then goes on to patterns of conduct that the commenter finds unconducive to a healthy society:

                  TAKE THE HOOD OFF YOUR HEAD, AND PULL UP YOUR DANG PANTS, AND QUIT IMPREGNATING EVERYBODY.

                  Those who exhibit these behaviors no doubt disagree but is it illegitimate or racist for a person to believe that these behaviors are antisocial or at least not productive of a healthy society? If I criticize people who don’t get married before they have children, have I crossed the line? Am I not allowed to hold and express such an opinion? If I do so is it your contention that I am also criticizing people who do get married before having children?

            2. I’m pretty sure that the message of the comment above was that thuggish people (like the ones “that beat the father in his vehicle because he didn’t slow down,” who “shot the college baseball player because they were bored”) should stop doing thuggish things. But if you think that stealing, shooting baseball players, and beating fathers in their vehicles are typically black things, then it isn’t Kelly Tucker who’s the racist here.

              1. Why do you think that was brought up in a thread about Black Lives Matter, Seamus?

                I can think of one reason, and it’s distraction in service of ignoring BLM’s concerns.

                1. I can think of one reason, and it’s distraction in service of ignoring BLM’s concerns.

                  It is contradicting some of BLM’s assertion of where the blame for the problem lies. Is that impermissible? Should it be discouraged?

                  1. Swood, it doesn’t contradict anything. How does where your pants are and your marriage practices have anything to do with cops shooting you and getting away with it?

                    1. Swood, it doesn’t contradict anything.

                      Clearly her list of factors responsible for societal unrest was not in harmony with BLM’s list.

                      How does where your pants are and your marriage practices have anything to do with cops shooting you and getting away with it?

                      She wasn’t saying that these factors are responsible for people being shot. She’s saying that these factors contribute to societal disfunction and pathology. You can disagree with her but is it illegitimate of her to have and express such opinions?

                    2. If Black Lives really Matter, they’d be targeting other blacks, who kill measures more blacks than cops do.

                      Sorry if they wish to myopically focus on one issue while proclaiming larger ambitions.

            3. It seems to me that the context of the rant is that the Black Lives protesters were referring to some specific instances, and she in turn was referring to the facts of those instances.

              Where she got into general stereotypes was when she suggested an alternative sign, but I don’t know what the original sign said so it may or may not have been an appropriate replacement.

              The problem w

              1. She seems to have left facts behind and gone to making some pretty fraught generalizations about the Problems with the Blacks.

                1. She seems to have left facts behind and gone to making some pretty fraught generalizations about the Problems with the Blacks.

                  Where does she generalize about the problems with the blacks, as opposed to criticizing specific types of behavior and the people committing that behavior?

                  1. BLM makes her think of the following:
                    TAKE THE HOOD OFF YOUR HEAD, AND PULL UP YOUR DANG PANTS, AND QUIT IMPREGNATING EVERYBODY.

                    That’s problematic.

                    1. BLM makes her think of the following:

                      Only in the sense that she thinks that her list of factors is more central to the problem than BLM’s list. Why is it problematic to think that out-of-wedlock births is one of the prime causes of societal dysfunction, that adopting a slouching, rebellious, anonymous clothing style that seems to glorify the criminal lifestyle is not the direction out of trouble, and that the focus should instead be on acquiring skills and habits that will reward a person with a good paying job and true dignity?

                    2. You are reading a great deal into what she said.

        2. Criticizing black protestors by saying what about all this thuggish stereotypical behavior’ is distraction and not content.

          It’s actually of disutility is the immediate general association of blacks you don’t like with that stereotype.

          1. But the comment above is not saying ‘there are black thugs’ it is saying ‘blacks need to stop doing things I don’t like until they deal with there being so many black thugs.’

            The poster referenced the people she was talking about:

            What about the thugs that beat the father in his vehicle because he didn’t slow down. What about the thugs that shot the college baseball player because they were bored. The list can go on and on.

            This is finding fault with a certain group of people exhibiting a certain behavior. Is this permissible? What makes it racist? Why is it “distraction and not content”? Why do you say that it targets people other than those exhibiting a certain behavior?

            1. It is literal whattaboutism.

              1. It is literal whattaboutism.

                Whataboutism is a variant of the tu quoque logical fallacy that attempts to discredit an opponent’s position by charging them with hypocrisy without directly refuting or disproving their argument. https://en.wikipedia.org/wiki/Whataboutism

                In what respect am I charging you with hypocrisy? I am directly contradicting your argument. I am saying that the commenter is not talking about an entire race but is talking specifically about people who exhibit specific behaviors. Why is that racist or why does it lack content? Why is it impermissible?

                1. What about the thugs…

                  She’s whattabouting BLM.

                  1. What about the thugs…
                    She’s whattabouting BLM.

                    She’s whattabouting BLM only if she is charging BLM with hypocrisy. How is she doing that? Instead she is pointing to what she thinks is part of the source of the problem, a part that BLM did not include in its statement of the causes. Saying that they did not accurately describe the problem is not whattaboutism. It is argument.

                    1. Most “whataboutism” is actually argument. Yelling “whataboutism!” is usually just an excuse to avoid having to respond to an argument.

                    2. Whattaboutism is distracting from a thesis by bringing up immaterial associated irrelevancies.

                      Like saying ‘BLM’s concerns? What about all the black thugs?!’ Which is literally what the comment does. It’s why practice got named like that.

                    3. Whattaboutism is distracting from a thesis by bringing up immaterial associated irrelevancies.
                      Like saying ‘BLM’s concerns? What about all the black thugs?!’ Which is literally what the comment does. It’s why practice got named like that.

                      The subject of the conversation, as I understand it, concerned the causes of societal unrest and dysfunction. BLM asserts its list of factors. She disagrees and proposes a different list, which included examples of thuggishness and other factors that she thinks promote these problems. Why is her list irrelevant? Are you saying as a certainty that her factors play no part?

                    4. She isn’t saying ‘BLM is wrong in it’s factors’ she’s saying ‘don’t listen to BLM look over here at all the thugging blacks do.’

                      Even if the pants and impregnating everybody is somehow causing social dysfunction, that isn’t an exclusive cause, and so provides zero proof BLM is wrong.

                      It’s a bog standard trick, and relies on a bog standard stereotypes of blacks.

                    5. But the statistical tenets behind BLM require that there not be statistical differences between the % black and % white thugs, because if that is not true than the entire movement is based on a lie. So pointing out that there are black thugs is a direct (although anecdotal) refutation of a main tenet of the BLM platform.

                    6. If BLM’s concerns are about black kids dying…the causes of death seem exceptionally focused.

                    7. Being focused does not make you wrong.

      2. You are such a dishonest twit. Thug doesn’t have a racial connotation. Go look up your standard Batman vs the mob comic, any mob movie, a listing of NHL thugs, and you will see white people galore.

        1. These days it sure does, Jesse.
          Perfect correlation is not needed.

    2. Why is “redeeming social value” even an issue?

      The 1A is not limited to speech that has “redeeming social value” [whatever that means].

      1. Agreed – that’s why the judge explicitly declamed the materiality of their opinion of the speech on it’s legality. In fact, it’s used to underscore the legal system being about laws not men.

        Which makes it all the more telling that the main issue swood1000 has isn’t even material, it’s that the judge personally isn’t as into this racial BS as he is.

        1. the main issue swood1000 has isn’t even material, it’s that the judge personally isn’t as into this racial BS as he is.

          The issue is material to whether or not the woman should have been disciplined by her superiors, the central part of the case, though it may not have been material to whether or not she could sue them. I am simply asking why it is racist or objectionable to blame part of a societal problem on thuggish behavior, but I’m having difficulty getting a relevant response.

          1. You’d get a better response if your characterization of the quoted comment had anything to do with what the comment was saying.

            Hint: it wasn’t exploring ‘how do I solve this societal problem.’

            1. Hint: it wasn’t exploring ‘how do I solve this societal problem.’

              You don’t think that she was saying that societal unrest and dysfunction would be reduced if there were fewer thugs and fewer children born out-of-wedlock?

              1. Apparently, it is wrong if you point out that one group is ignoring a huge massive problem to focus on a much smaller issue.

                BLM is a public group. One can happily and easily point out how myopic, uneducated, and non-persuasive most of their views are.

                1. The question is not whether “one can.” The question is whether she did. She didn’t.

                  1. The question is not whether “one can.” The question is whether she did. She didn’t.

                    So your position is that she didn’t see her post as a contradiction to and an argument against the BLM position?

                    1. I mean, it’s neither a contradiction to nor an argument against that, so her intent isn’t really elemental.

                    2. I mean, it’s neither a contradiction to nor an argument against that, so her intent isn’t really elemental.

                      It’s absurd to say that she did not intend to contradict BLM.

                    3. What you are doing is begging the question.

                      We are discussing the non-legal question of whether what she’s saying has any utility. You first assume it does, and read that assumption into her post.

                      Read her post again – where does she even try to engage with BLM? She doesn’t. You are twisting her words into something defensible, which is strange since you leapt to her defense based on her words.

                      It’s like her thuggery tropeapalooza was some sort of shibboleth and you recognized your tribe.

                    4. Read her post again – where does she even try to engage with BLM? She doesn’t.

                      You responded to this post:

                      One can happily and easily point out how myopic, uneducated, and non-persuasive most of their views are.

                      by posting:

                      The question is not whether “one can.” The question is whether she did. She didn’t.

                      Well, take this sentence of hers:

                      What about the thugs that beat the father in his vehicle because he didn’t slow down.

                      Isn’t she here pointing out a fact that she thinks contradicts the BLM narrative?

                    5. What about doesn’t – can’t, in fact – contradict bupkis, though.

      2. Why is “redeeming social value” even an issue?

        My question was why Eugene’s definition of redeeming social value would exclude the opinion stated by this woman, he being an authority on such matters. Though this definition was not a part of the decision in this case, whether the woman’s comment was legitimate was certainly central to whether she should have been disciplined.

        1. No it isn’t central to the legal question.
          For instance, not having redeeming social value isn’t the same as illegitimate.

          Despite this walking back of your initial post, you still aren’t defending free speech as a concept, you are defending the validity of this opinion.

          IMO, it’s a helluva choice for a point of view to run and associate with.

          1. No it isn’t central to the legal question.

            I didn’t say it was central to the legal question. I said it was central to whether she should have been disciplined.

            For instance, not having redeeming social value isn’t the same as illegitimate.

            Please describe the difference.

            Despite this walking back of your initial post,

            What did I walk back?

            you still aren’t defending free speech as a concept, you are defending the validity of this opinion.

            What is the distinction you are making? If by “validity of this opinion” you mean that I am distinguishing it from a racist assault that is entirely harmful to the fabric of society, you are correct.

            IMO, it’s a helluva choice for a point of view to run and associate with.

            Can you tell me what is wrong with a criticism of thugs and a criticism of people responsible for out-of-wedlock births?

            1. Speech without value is still legitimate, isn’t it?

              1. Speech without value is still legitimate, isn’t it?

                The topic is not speech without value, it is speech without redeeming social value. To redeem is “to make up for; make amends for; offset (some fault, shortcoming, etc.)” Therefore we are talking about something with a net negative value, because there is no aspect of it with enough of a positive value to offset the negative value. For example, obscenity is considered to corrupt the general morals and therefore to have a negative social value, and we ask whether there is any aspect of it with enough of a positive social value to offset the negative.

                So, speech without redeeming social value has a net negative value and is not legitimate.

                1. No, that’s not what we’re talking about. Because as the judge said, this speech is clearly legal.
                  It’s not comparable to obscenity or libel.

                  I am amused that in straining to make this an argument and not you getting triggered by disliking her opinion, you’re now arguing bad arguments are illegitimate speech.

                  1. By seeing someone else dislike her opinion, that is.

                  2. you’re now arguing bad arguments are illegitimate speech.

                    What are you talking about? Your statement was:

                    For instance, not having redeeming social value isn’t the same as illegitimate.

                    My response was that if someone asserts that certain speech is without redeeming social value he is asserting that it has negative value, making it illegitimate. I am not saying that bad arguments are illegitimate.

                    1. Legitimacy and value are orthogonal. We don’t check some metric of value for whether speech is legitimate!

                    2. Legitimacy and value are orthogonal. We don’t check some metric of value for whether speech is legitimate!

                      Let’s take speech that is entirely racists hate. It has no redeeming social value, right? Is it nevertheless legitimate? If not, give me some speech with negative social value that is nevertheless legitimate.

                      Dictionary definition of legitimate: “in accordance with established rules, principles, or standards.” What is your definition?

                    3. Opinion is legitimate, even if its infuriating. Even if it’s hateful. That’s what our rules say, in fact.

                      Incorrect facts is where I would draw the line personally. So I would consider Holocaust denial, for instance, illegitimate speech that does not deserve a platform.

    3. ===Why does this lack any redeeming social value?===

      On top of that it would be viewpoint discrimination. There are many government programs to reduce bullying but she clearly wants her tax dollars to support “abusive…children”.

      1. she clearly wants her tax dollars to support “abusive…children”.

        Given that this makes no sense, doesn’t it seem more likely that she meant “abused?children” but neglected to proofread before posting?

  6. Ahh…. the doctrine of qualified immunity.

    Basically, a doctrine that means that government officials do not have to be as careful about protecting the constitutional rights of citizens as they should be. After all, we wouldn’t want the government to actually be careful before “maybe” trampling the rights of its citizens.

    Qualified immunity has to be one of the most lame judge-made doctrines ever.

    1. Ahh…. the doctrine of qualified immunity.

      No, this is actually pretty much the polar opposite of what you are suggesting. Qualified immunity is special dispensation given to agents of the state allowing them immunity from the rules they force upon us. In this case, the argument was that the state agent must surrender fundamental human rights because they are in fact an agent of the state.

      While qualified immunity is in fact pretty lame, I think you progressives struggle with antonyms.

      1. You are confusing which agents of the state were granted qualified immunity, Don’t. The administrators are the ones who got the protection, not the teacher.

      2. Which fundamental rights was the teacher forced to surrender?

        1. Freedom of speech, and of the press.

          1. Nope! The teacher still has full 1A rights and can use them anyway she sees fit.

            She was disciplined because the school board determined a “clear lack of judgment on the part of a public school teacher presently teaching African American students,’ that it created a “toxic atmosphere at the school,’ and that it ‘had the effect of undermining the trust’ that students, their parents, and Tucker’s colleagues had in her ability to effectively teach and mentor the students.”

            This is – and can only be – about her actions and how they affect the workplace.

            She has not surrendered any rights.

            1. Yep.

              “you have the 1st Amendment right to say anything you want, but if you say something we don’t like, even in an unofficial capacity, we will suspend or possibly fire you”.

              No chilling of free speech there. No sir’ree.

            2. “The teacher still has full 1A rights and can use them anyway she sees fit.”

              Do not gaslight us.

              The government punished her for exercise of her rights. If you are punished for doing something, you have no right anymore.

            3. The right isn’t to speak and publish, it’s to speak and publish without being punished by the government for doing so.

              No, she hasn’t surrendered any rights, they’ve just been violated.

    2. What I’ve never figured out about qualified immunity is how the law ever gets clearly established if every case that arises is dismissed based on qualified immunity because there is no clearly established law.

      Why don’t the courts decide whether a a constitutional violation has occurred, and then at the end of the opinion make a statement about the government officials getting a free pass in that case, but going forward all government officials are now on notice.

      1. Supposedly that’s how “qualified immunity” is supposed to work. Except that the next time they find some excuse to distinguish the behavior from the previous time.

        “We only notified the police that they’re not allowed to beat suspects to death with a lead pipe. This suspect was beaten to death with a steel pipe. Qualified immunity!”

        1. This sounds right.

          Apparently the police are not required to have the slightest bit of common sense, or understanding of Constitutional rights, unless they’ve been informed that a specific act, under specific circumstances, is a violation.

        2. The qualified immunity infection is spreading from the Short Circuit Roundups to other posts. Nooooooo!

      2. That’s an interesting question. There are two general answers. First, some things are obvious even without a case on point — there being no case on point precisely because the violation is obvious. See, for example, Hope v. Pelzer. Second, QI applies only to suits seeking damages. Most push-the-envelope legal theories develop in cases seeking only injunctive relief. The rule can be established in a suit for injunctive relief and applied in later cases seeking damages, because now the public officials should know better. In effect, they get a pass this time, but are told to go and sin no more.
        The latter rule isn’t as arbitrary as it may sound. Think of yourself as a government bureaucrat. Your job is to administer policies usually decided elsewhere in the food chain, often by a boss who is out of touch with reality on the ground. When somebody sues for injunctive relief and wins, you get told to do something else, often by a judge even more out of touch than your boss. Bad as this is, the one thing you as a government bureaucrat absolutely need to know is what idiotic policies you are supposed to implement. So the out-of-touch judge can tell you to do something different from what your out-of-touch boss. But at least you know what you have to do. That’s tough enough, but adding damages liability would make your life intolerable.

    3. “Qualified immunity has to be one of the most lame judge-made doctrines ever.”

      I agree. I’ve always felt that government officials and agents should be held to a higher standard than the average Joe, not a lower one.

  7. I’m sorry, still processing… The First Amendment is not clearly established law?

    What is it – a suggestion?

    1. The first amendment was clearly established law but the Court said it was not clearly established law that the action they took violated the first amendment rights of Tucker.

      Government employers are permitted to take action against employees who engage in speech that “may unreasonably disrupt the efficient conduct of government operation[s].” They have to go through a four step balancing test which includes weighing the First Amendment interests of the employee against the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. For it to have been clearly established law there would have had to be a prior case with substantially the same facts on which a judgment had been rendered.

      The Court said that:

      Because “pre-existing law [does not] dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that [taking disciplinary action against Tucker for her post] violates [the First Amendment] in the circumstances,” the trial court erred in ruling that Atwater and Rutland were not entitled to official immunity.

      1. Thanks.

        That policy amounts to saying that constitutional law is a kind of common law, where precedents are established one at a time by court ruling – and do not exist until then. And, of course, government defendants cannot be held accountable for violating a rule before the rule is established.

        In creating “qualified immunity”, the courts have effectively ruled that the Bill of Rights is merely a set of guidelines, or suggestions, to the court in determining these “common law” precedents (which will not apply to the case in which they are determined). The courts are holding that the Bill of Rights does not establish any law by itself.

        I’m pretty sure that the legislators who ratified the Bill of Rights in 1791 did not think they were merely establishing suggestions.

        1. That policy amounts to saying that constitutional law is a kind of common law, where precedents are established one at a time by court ruling – and do not exist until then. And, of course, government defendants cannot be held accountable for violating a rule before the rule is established.

          I disagree. Really it amounts to providing an extra layer of protection for public officials against being sued for actions they take in the course of their jobs. Essentially it amounts to a presumption of reasonableness, but the presumption can’t stand if very similar facts had previously been declared unreasonable.

  8. “qualified immunity because they did not violate any clearly established law”

    Ironic effect here that one of the King’s Men cannot prevail against others of the King’s Men because of a court created modern “droit du seigneur”.

  9. So because qualified immunity, the question remains open and future administrators are free to commit the same injustices.

    Qualified immunity is a standard that has failed. It is past time to abolish it. Hold government officials to the same legal standards that they hold the rest of us to.

  10. Regarding this statement in the concurrence:

    “Indeed, Tucker doesn’t cite a single case to that effect from this Court, the Eleventh Circuit, or the United States Supreme Court, which are the only courts that can clearly establish law for this jurisdiction, and I haven’t found any.”

    I’m curious about the list of courts here. I was under the impression that a state supreme court was only bound to follow opinions from the United States Supreme Court and not from the United States Court of Appeals. And, assuming that is the case, is there any reason for Georgia to select the Eleventh Circuit as the only U.S. Court of Appeals providing clearly established law other than the fact that Georgia happens to be within the geographic area of the Eleventh Circuit?

    Also, why can’t Georgia appellate cases provide clearly established law?

    1. State courts are bound by the holdings (on federal questions) of the circuits in which the states sit.

      1. I don’t think that’s accurate. I looked this up and found that almost every state has asserted that it is not bound by the lower federal courts’ interpretation of the the U.S. Constitution.

        1. I was under the impression that a state supreme court was only bound to follow opinions from the United States Supreme Court and not from the United States Court of Appeals.

          That’s true but the concurrence said “establish law” not “bind the state supreme court on the question.” Roy Moore made the statement

          ‘This court is not bound by decisions of the United States Courts of Appeals or the United States District Courts.’

          While this is true, state officials must obey orders of the U.S. Court of Appeals and Moore’s refusal to do so in his capacity as an Alabama state officer was what got him removed from the Alabama Supreme Court on ethics violations. The rule is:

          while decisions by the federal judge in Mobile nullifying Alabama’s ban on same-sex marriage do not actually bind any state court pondering the same question, such a federal court ruling, if directed to state officials, must be obeyed by them. If a state official has been properly sued in federal court, and is found to have violated the national Constitution, a federal judge has ample authority to order such an official to stop the violation.

  11. “But there’s no reason why the next such case should face the same problem. Indeed, had Tucker simply administratively appealed her discipline, she could have asserted her First Amendment arguments without any question of qualified immunity arising.”

    So, a mere administrative hearing can make something ‘clearly established,’ but multiple appellate decisions from other circuits can’t? That seems backwards…. particularly if the lack of appellate split makes SCOTUS review unlikely.

    1. “So, a mere administrative hearing can make something ‘clearly established,’…”

      That’s not what they’re saying. They’re saying that if she had taken it up through an administrative appeal, there would be no point to discuss qualified immunity.

    1. Er… concurrence. Whatever.

  12. Doesn’t City of San Diego v. Roe suggest off-work speech can be subject to Pinkering scrutiny? Or at least serve as grounds for discipline for government worker? Or would that fall into a special law enforcement category, similar to student speech?

  13. Does anyone know why the plaintiff did not seek some kind of equitable relief — e.g., removal of any record of her five-day suspension from her permanent employment record — that would not have been subject to “qualified immunity”? Or did she, and the courts just ignored it?

  14. No clearly established law? Whatever happened to 42 USC ?1983? “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

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