holding that public officials were entitled to qualified immunity for criticism they leveled at publishers of pornography and noting that “the Supreme Court has never found a government abridgment of First Amendment rights in the absence of some actual or threatened imposition of governmental power or sanction”
How later courts described this case
- holding that public officials were entitled to qualified immunity for criticism they leveled at publishers of pornography and noting that “the Supreme Court has never found a government abridgment of First Amendment rights in the absence of some actual or threatened imposition of governmental power or sanction”
- holding that public officials were entitled to qualified immunity for criticism leveled at publishers of pornography, noting that “the Supreme Court has never found a government abridgement of First Amendment rights in the absence of some actual or threatened imposition of governmental power or sanction”
- holding that officials had qualified immunity from suit as appellant did not have a clearly established constitutional right to be free of pressure from the government to respond to allegations that they were selling pornography if no threats of legal sanctions were employed
- explaining that the doctrine of prudential mootness “is concerned, not with the court’s power under Article III to provide relief, but with the court’s discretion in exercising that power”
Written by the judges who cited it.
The opinion
RANDOLPH, Circuit Judge,
concurring:
I join in part III of the court’s opinion affirming the district court’s denial of declaratory relief, but concur only in the court’s judgment that defendants are immune from liability. Plaintiffs have alleged that one Commissioner, in a telephone call to an official of Southland Corporation, conveyed a false statement about the Commission’s findings for the purpose of inducing Southland to stop distributing Penthouse magazine. Although part II of the court’s opinion suggests otherwise, I believe the First Amendment may well prohibit government officials from spreading false, derogatory information in order to interfere with a publisher’s distribution of protected material. While this might require an inquiry into the official’s motive, it is not unusual for a First Amendment violation to turn on whether governmental conduct was undertaken for the purpose of infringing on someone’s speech. See Mt. Healthy City School District v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1974). I also do not think there would be any particular difficulty in drawing a line between cases in which an official has spoken the truth or perhaps made an inadvertent misstatement (cf. Babbitt v. United Farm Workers, 442 U.S. 289, 301 , 99 S.Ct. 2301, 2310 , 60 L.Ed.2d 895 (1979)) and cases in which the official has engaged in intentional lying in order to bring about the injury. A ruling along these lines would, however, constitute new law. Like the majority, I cannot find any clearly established doctrine that the sort of governmental interference alleged here, which is analogous to the common law tort of “injurious falsehood” or malicious interference with a contractual relationship (see 2 F. Harper, F. James & O. GRAY, The Law of Torts 297 (1986); Restatement (Seoond) of Torts § 767 (1979)), violates the First Amendment. I therefore concur in the judgment that the defendants are immune from liability under Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982).