The first responsibility of government is to protect its citizens and their inalienable rights. As the Declaration of Independence puts it, “to secure these rights [of life, liberty and the pursuit of happiness], Governments are instituted among Men.” But what happens when the government officials whose first job is protecting your rights are the ones who are violating them? If government officials can violate your constitutional rights and not be held accountable, your rights aren’t worth the parchment they’re written on. Qualified immunity is the judge-made law that allows government officials to fail their first responsibility and avoid accountability. Conservatives, as much as anyone, should oppose it.
The 1871 Civil Rights Act, passed in the aftermath of the Civil War, authorizes lawsuits against state and local government officials who violate your constitutional rights. But the Supreme Court has judicially amended the law to completely protect police, university, or other officials who violated your rights if the law was not already “clearly established.” In practice, this is an extraordinarily high bar that shields “all but the plainly incompetent” government officials. Another court must have already said that another official violated the Constitution when he did the exact same thing to someone else that an official did to you. That’s why police officers have recently been deemed immune from civil liability for stealing money from people whose homes they searched or ordering police dogs to attack suspects sitting on the ground and giving themselves up.
As Justice Clarence Thomas has recently written, there is “no basis [in the Civil Rights Act] for the objective inquiry into clearly established law” that the Supreme Court has imposed to protect government officials from accountability. This is not an approach to your constitutional rights that conservatives or anyone else should support. And that’s why many civil liberties organizations across the ideological spectrum are urging the Supreme Court – and Congress and even state legislators – to end qualified immunity.
Qualified immunity is getting enhanced scrutiny because of the impact it may have on justice for the family of George Floyd, killed by a Minneapolis police officer. And conservatives should lead the charge to see government respect constitutional rights, opposing qualified immunity because it turns communities against good police officers because it prevents true accountability for the worst ones. But free speech advocates have an additional reason to oppose qualified immunity — it’s a primary reason why university administrators keep getting it wrong when it comes to student and faculty expression rights. There is obviously no parity between the victims of police abusing their power and the frequent fights over campus speech policies. But the same judge-made legal rule stops those in power from feeling the consequences of violating any number of rights. Advocates of free speech and open inquiry on campus, like everyone else, should join this fight to hold the government accountable.
Instinctively, conservatives know that incentives matter here. I’ve sued dozens of public universities for violating the First Amendment rights of students. Every time I sued a university that told a Christian student group they couldn’t share their faith without advance permission from the Office of Student Affairs or literally arrested students for handing out the Constitution on their campus on Constitution Day, concerned conservatives told me: “Make the universities pay! That will stop this!”
That’s a truth that’s universal — people change their behavior when they’re accountable for bad outcomes. If we want government at any level to prioritize protecting constitutional rights, officials must be motivated to prioritize it.
Our country’s free speech challenges extend well beyond campuses and cut across ideology and other demographics. Almost 30 percent of adults say the First Amendment “goes too far” in its protections, 25 percent would give the president power to shutter news media “engaged in bad behavior,” and 50 percent say that universities should disinvite speakers who will offend some part of a campus’ population.
But in few places in American life is it so common for government to write down anti-speech policies in ink. Roughly 90 percent of public universities maintain speech zones, speech codes, and other formal written policies that, however well-meaning their intent, violate the First Amendment. This is after years of groups like Foundation for Individual Rights in Education, Alliance Defending Freedom, and others working with universities to correct unconstitutional policies and challenging them in court when those rights are violated.
After decades of work, there has been considerable progress — that just 10 percent of colleges now have “green light” policies with no free speech problems is significant, and many of the worst “red light” schools have at least become “yellow light” schools. That’s something. But if 90 percent of municipalities passed laws unconstitutionally restricting what people can say, where they can say it, or with whom they can associate, we would undoubtedly deem that a free speech crisis.
But the reason speech advocates can’t “make the universities pay” for these violations — and thus encourage them to prioritize getting these policies right — is qualified immunity.
The Supreme Court has interpreted the Constitution to prohibit you from filing suit against the University of California, Berkeley, an arm of the state, in federal court for damages when it violates your First Amendment rights. So your only option is to sue the individuals responsible for the decision. But qualified immunity makes that unlikely to succeed.
Your rights are violated, no one pays, and the officials who continue to draft and enforce those unconstitutional policies are not incentivized to spend the time and effort to get it right.
What happens if we eliminate qualified immunity? Then not only police officers, but all state government officials, including those who run your university, know they are accountable for constitutional violations. The city, university, or insurer will still cover employees’ liability, but by allowing more cases for constitutional violations to go forward, more rights will be vindicated and government will prioritize getting their written policies into compliance with the Constitution and training employees on what it requires of them. Whether police or universities, when government must weigh the cost of getting the Constitution wrong it will be more focused on getting it right.
In other words, we incentivize doing what government is created to do, protect your rights.
Eliminating disincentives to free expression such as qualified immunity would also reduce counterproductive attacks on higher education. Some groups have responded to censorial speech policies with efforts to intimidate and antagonize university leaders and faculty. Fighting fire with fire backfires and ultimately chills the environment that allows for diverse speech on campus. It also assumes that the university officials on the other side are trying to silence your views. The reality is that most are simply trying to weigh competing priorities.
Qualified immunity invites them to err too often on the side of restricting protected speech. Change the incentives and you get better results, without attacking the very principles of free expression that you otherwise defend.
When students graduate from universities where free speech and open inquiry is valued, not just in rhetoric but in lived reality, the next generation of teachers and judges and policymakers and community leaders will leave equipped to be the antidote to the broader attacks on civil liberties coming from all directions.
Government’s primary job is to protect your individual rights. Qualified immunity is a made-up judicial doctrine that absolves government of that responsibility on campus as well as in your police force. It’s time we end it. And campus speech advocates, especially the conservatives and libertarians who most often take on these unconstitutional campus speech policies, should welcome the opportunity to partner with anyone to hold government accountable.
Casey Mattox is vice president for legal and judicial strategy at Americans for Prosperity. On Twitter: @CaseyMattox_
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