Amicus Curiae Brief — William Felkner, Petitioner v. John Nazarian, et al.

Supreme Court briefOct 18, 2023

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No. 23-274

In the

Supreme Court of the United States

♦

WILLIAM FELKNER,

Petitioner,

JOHN NAZARIAN, ET AL.,

Respondents.

♦

On Petition for Writ of Certiorari to

The Supreme Court of Rhode Island

♦

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION,

MANHATTAN INSTITUTE, AND MOUNTAIN STATES

LEGAL FOUNDATION IN SUPPORT OF PETITIONER

♦

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

1310 N. Courthouse Rd, Ste

700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

ILYA SHAPIRO

TIM ROSENBERGER

MANHATTAN INSTITUTE

52 Vanderbilt Ave

New York, NY 20017

(212) 599-7000

ishapiro@manhattan.institute

WILLIAM E. TRACHMAN

JAMES L. KERWIN

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

Counsel for Amici Curiae

October 18, 2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICI CURIAE ..........................................1

SUMMARY OF ARGUMENT .............................................. 2

ARGUMENT.................................................................... 5

QUALIFIED IMMUNITY SHOULD NOT SHIELD

CONSTITUTIONAL INFRINGEMENT IN SLOW MOVING

FIRST AMENDMENT CASES. ....................................5

As a Foundational Matter, Qualified

Immunity is on Tenuous Footing. .................... 6

The Right to Free Speech Is So Well-Known

that Time Pressure Has Significantly Less

Relevance. .........................................................9

II. CLAIMS OF FREE SPEECH INFRINGEMENT ON

CAMPUS ARE SO COMMON THAT QUALIFIED

IMMUNITY SHOULD ALMOST NEVER APPLY. ......... 14

CONCLUSION ............................................................... 17

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023) ...................................... 2, 13

Adarand Constr., Inc. v. Pena,

515 U.S. 200 (1995) ............................................... 2

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................... 5

City of Houston v. Hill,

482 U.S. 451 (1987) ............................................. 12

Felkner v. Rhode Island College,

291 A.3d 1001 (2023) ........................................... 15

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 10

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) .......................................... 16

Illinois v. Krull,

480 U.S. 340 (1987) ................................................ 9

Imbler v. Pachtman,

424 U.S. 409 (1976) ................................................ 9

Jessop v. City of Fresno, California,

140 S. Ct. 2793 (2020) ............................................ 1

iii

Jordan v. Jenkins,

73 F.4th 1162 (10th Cir. 2023) ...................... 11, 12

Kennedy v. Bremerton School District,

142 S. Ct. 2407 (2022) ..................................... 2, 10

Keyishian v. Board of Regents,

385 U.S. 589 (1967) .............................................. 10

Little v. Barreme,

6 U.S. 170 (1804) .................................................... 8

Mahanoy Area School District v. B. L.,

141 S. Ct. 2038 (2021) ...................................... 1, 10

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................... 6

National Institute of Family & Life

Advocates v. Becerra,

138 S. Ct. 2361 (2018) .......................................... 14

Procunier v. Navarette,

434 U.S. 555 (1978) .............................................. 10

Rosenberger v. Rector & Visitors of Univ. of

Va.,

515 U.S. 819 (1995) .............................................. 13

Taylor v. Riojas,

141 S. Ct. 52 (2020) ................................................ 1

Tinker v Des Moines Independent

Community School District,

393 U.S. 503 (1969) .............................................. 10

United States v. Stevens,

559 U.S. 460 (2010). ............................................... 7

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) ........................................ 1, 10

W. Virginia State Bd. of Educ. v.

Barnette,

319 U.S. 624 (1943) ........................................ 10, 13

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) .......................... 16, 17

Constitution

U.S. Const. Amend. I .. 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13,

14, 15, 17

U.S. Const. Amend. IV .............................................. 12

Statutes

42 U.S.C. § 1983 ................................................ 3, 9, 17

Other Authorities

Aaron L. Neilson & Christopher J. Walker,

A Qualified Defense of Qualified

Immunity, 93 Notre Dame L. Rev. 1853,

n.57 (2018) .............................................................. 8

1 Thomas M. Cooley, A Treatise on The Law

of Torts or The Wrongs Which Arise

Independently of Contract 326 (John

Lewis ed., 3d ed. 1906) ........................................... 6

Mark D. Yochum, The Death of A Maxim:

Ignorance of Law Is No Excuse (Killed by

Money, Guns and a Little Sex), Journal

Of Civil Rights And Economic

Development, St. John’s University

School of Law (Spring 1999) .................................. 7

INTEREST OF AMICI CURIAE1

Americans for Prosperity Foundation (“AFPF”), is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, AFPF has

litigated to protect First Amendment rights,

Americans for Prosperity Found. v. Bonta, 141 S. Ct.

2373 (2021); and regularly files amicus briefs

supporting speech rights, e.g., Mahanoy Area School

District v. B. L., 141 S. Ct. 2038 (2021), encouraging

this Court to reconsider the doctrine of qualified

immunity, e.g., Jessop v. City of Fresno, California,

140 S. Ct. 2793 (2020); Taylor v. Riojas, 141 S. Ct. 52

(2020), and highlighting the particularly pernicious

effect of applying qualified immunity in the university

setting to suppress speech. Uzuegbunam v.

Preczewski, 141 S. Ct. 792 (2021). Throughout our

nation’s history, the fight for civil rights has relied on

the exercise of civil liberties, which is one reason they

must be protected. AFPF is interested in this case

because the protection of the freedoms of expression

and association, guaranteed by the First Amendment,

is necessary for an open and diverse society.

The Manhattan Institute (“MI”) is a nonprofit

public policy research foundation whose mission is to

develop and disseminate new ideas that foster

economic choice and individual responsibility. To that

1 No counsel for a party authored this brief in whole or in part

and no person other than amici or its counsel made any monetary

contributions to fund the preparation or submission of this brief.

Counsel for all parties were notified of amici’s intent to file this

brief greater than ten days prior to the date to respond.

end, it has historically sponsored scholarship

supporting the rule of law and opposing government

overreach, including in the marketplace of ideas. Its

scholars regularly speak on college and graduateschool campuses, and likewise have faced protest,

shutdown, and cancelation. MI also runs the Adam

Smith Society, which brings together business-school

students and alumni for discussion and debate on how

the free market has contributed to human flourishing

and opportunity for all.

Mountain States Legal Foundation (“MSLF”) is a

nonprofit, public-interest law firm organized under

the laws of the state of Colorado. MSLF is dedicated

to bringing before the courts issues vital to the defense

and preservation of individual liberties, the right to

own and use property, the free enterprise system, and

limited and ethical government. Since its creation in

1977, MSLF attorneys have been active in litigation

regarding the proper interpretation and application of

statutory, regulatory, and constitutional provisions.

See, e.g., Adarand Constr., Inc. v. Pena, 515 U.S. 200

(1995) (MSLF serving as lead counsel); Kennedy v.

Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (amicus

curiae in support of petitioner); 303 Creative LLC v.

Elenis, 143 S. Ct. 2298 (2023) (amicus curiae in

support of petitioners).

This case concerns amici because it involves

blatant

violations

well-established

First

Amendment protections by a state actor.

SUMMARY OF ARGUMENT

Two policy considerations have traditionally been

asserted as the rationalization for qualified immunity:

to ensure fair notice before imposing monetary

liability against state officials; and to provide

breathing room for split-second decisions in

dangerous situations that may arise in the course of

law enforcement.

To the extent this Court intends to continue to

apply the doctrine of qualified immunity for claims

brought under 42 U.S.C. § 1983, the doctrine should

be limited to these purposes. Qualified immunity as a

shield for constitutional infringement has no place

where the doctrine is not necessary to providing fair

notice to officials, or where it is untethered to any

quick-response law enforcement purpose. It is

especially problematic when it protects officials who

have plenty of time to consider, reflect, and seek legal

advice before engaging in their unconstitutional

conduct.

Under the First Amendment, for which bedrock

principles are well established and public discussion

is ubiquitous, it would be rare, if not impossible, for

solicitous protection of speech to diminish effective

and timely law enforcement measures. In the same

vein, the timeframe over which infringing activity

takes place should inform whether the government

official’s understanding of the law was reasonable.

The longer the timeframe, the greater the ability to

reduce uncertainty regarding the law—regardless of

whether the uncertainty was reasonable ab initio.

Qualified immunity in such cases serves no purpose

other than to disincentivize getting the law right and

to shift the cost of willful ignorance from the

perpetrator of a constitutional violation to the victim

of the unconstitutional misconduct.

But regardless of the timing issue, premeditated,

policy-based, viewpoint discrimination is all too

common on college campuses where institutions

suppress speech through slow-moving and deliberate

application of their policies, which have generally

been developed by professionals who have expertise in

the law or at least easy access to government-provided

legal counsel. Similarly, these academic officials have

no duty to enforce any criminal law on which public

safety depends. But applying qualified immunity to

educational administrators has real consequences:

schools may repeatedly infringe on constitutional

rights while shrouded in the protection of qualified

immunity.

Moreover, because schools are able to game the

issue of whether precedent is established—by settling

or mooting disputes in cases where they fairly

anticipate court losses—the doctrine of qualified

immunity creates a vicious cycle where precedent

would otherwise discourage future violations. Not

only does this “anti-precedent trap” leave students

without a remedy for obvious infringement—it also

teaches students that education administrators can

successfully curb or eliminate rights by cultivating

their own ignorance.

This is a case in point. Here, Mr. Felkner made

numerous complaints that his speech rights were

being infringed by Rhode Island College (RIC) over a

period of several years. There was no question that

RIC was on notice that its policies and practices

implicated First Amendment rights. And any

purported ignorance that its specific actions were

unlawful—almost never enough on its own to show a

lack of fair notice—was all the more unreasonable

here because the College had ample time to seek

advice from its legal counsel. Similarly, because there

was no alleged unlawful behavior by Mr. Felkner, any

potential error on the side of free speech—to the

extent such an “error” is even possible—could have no

chilling effect on “vigorous law enforcement.”

Thus, neither policy justification for invoking

qualified immunity would have applied. Yet the

Rhode Island Supreme Court shielded the

constitutional violations here simply because there

was no existing precedent involving a university’s

infringement of a student’s rights in exactly the same

way as RIC did here—or reached adjudication for such

infringement. The effect of applying qualified

immunity in this suit thus “sprang” the antiprecedent trap: RIC reaped the benefit of other

institutions having avoided final judgments on their

questionable actions. This Court should reject a

doctrine wherein players can game the system today

to shelter tomorrow’s violations by evading

adjudication of First Amendment claims.

ARGUMENT

I. Qualified Immunity Should Not Shield

Constitutional Infringement in Slow Moving

First Amendment Cases.

In cases of alleged infringement of First

Amendment rights, particularly where, as here, a

slow-moving chain of events unfurls over a

substantial period of time, qualified immunity should

not apply. This is because, “[t]he crucial question . . .

is whether ‘a reasonable official would understand

that what he is doing violates [a constitutional]

right.’” Anderson v. Creighton, 483 U.S. 635, 640

(1987). In cases silencing or punishing bedrock First

Amendment activity, a legal doctrine that excuses

ignorance is a poor fit.

As a Foundational Matter, Qualified

Immunity is on Tenuous Footing.

It can be argued that qualified immunity serves

two policy interests: (1) to ensure fair notice for the

government employee before liability can be imposed

(which, properly understood, is co-extensive with the

constitutional due process requirement of fair notice

for anyone, government official or not); and (2) to

promote official action necessary to society. See 1

Thomas M. Cooley, A Treatise on The Law of Torts or

The Wrongs Which Arise Independently of Contract

326 (John Lewis ed., 3d ed. 1906) (citation omitted)

(explaining historical basis for qualified immunity).

This Court has applied qualified immunity in cases

involving danger and time-sensitive decision-making

for law enforcement officers. See, e.g., Mullenix v.

Luna, 577 U.S. 7 (2015) (applying qualified immunity

where law enforcement chose among dangerous

alternatives in regard to a high-speed car chase).

Even crediting this tradition, of course, the law

enforcement justification for qualified immunity

breaks down entirely in cases like Mr. Felkner’s

where there is no allegation of lawbreaking or danger

to officers. In such cases there is no reason for society,

the law, or the courts, to create a safe harbor for public

officials who engage in aggressive suppression or

compulsion of speech. Nor would such an approach be

consistent with the First Amendment in which

protection of speech is the default rule and

criminalization of speech is the exception. It is thus

hard to imagine a situation in which public officials

ought to be encouraged to engage in vigorous law

enforcement with respect to speech. Indeed, this

Court has steadfastly held the line against declaring

“new categories of speech outside the scope of the First

Amendment.” United States v. Stevens, 559 U.S. 460,

472 (2010). Thus, invoking the societal benefit from

vigorous law enforcement in any but the most

extraordinary

circumstances—and

limited

historically unprotected category of speech—makes

little constitutional sense. Id.

The fair-notice rationale for qualified immunity

also breaks down in cases like Mr. Felkner’s. The

contours of fair notice implicate due process, the

availability or ambiguity of positive law, the

chronology and factual similarity of clarifying court

opinions, and the amount of time the state actor has

available to evaluate the constitutionality of the

proposed course of action—with the latter being also

or even more relevant to the “reasonableness” of the

official’s actions under the circumstances.

At a fundamental level, the mere fact that a

government official (or anyone else for that matter)

claims to have been unaware that his or her conduct

was unlawful is insufficient to show a lack of fair

notice. This is reflected in the age-old maxim that

ignorance of the law is no excuse.2 That said, certain

narrow exceptions have evolved over time based on

situational features that show a lack of fair notice.

Put another way, there is a distinction between

2 See Mark D. Yochum, The Death of A Maxim: Ignorance of Law

Is No Excuse (Killed by Money, Guns and a Little Sex), JOURNAL

OF CIVIL RIGHTS AND ECONOMIC DEVELOPMENT, St. John’s

University School of Law (Spring 1999) (‘Ignorance of the law is

no excuse’” is taken from the latin phrases ignorantia legis

neminem excusat or ignorantia juris non excusat.”), at

https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1

306&context=jcred

unclear or erroneous laws for which a government

actor could not reasonably be deemed to have fair

notice, on one hand, and acts a government actor

should be expected to know are unlawful, even if they

profess personal ignorance, on the other.

As an example of the first category, “imagine an

officer engages in conduct that has been explicitly

blessed by the Supreme Court but nonetheless is sued

for it, and in the course of that litigation, the Supreme

Court overrules its prior decision. Presumably

imposing liability on that officer would offend

principles of fair notice.” Aaron L. Neilson &

Christopher J. Walker, A Qualified Defense of

Qualified Immunity, 93 Notre Dame L. Rev. 1853,

n.57 (2018) (cleaned up). In that case, it would be

unreasonable to hold the officer to a higher standard

of knowledge than the Court itself.

On the other hand, absent the kind of reasonable

misunderstanding outlined above, a public official is

always bound by the law. This can be true even in the

face of contrary commands from a superior. For

example, in a case from the early days of the Republic,

this Court held that a ship captain was legally

responsible for the unlawful seizure of another ship

even though he relied on the President’s

interpretation of the underlying statutory authority.

See Little v. Barreme, 6 U.S. 170, 170 (1804). It was

not enough in Little that the error in law could be

traced directly to the President’s order; the captain of

the ship was responsible for complying with the law

as enacted. In essence, the mismatch between the

President’s command and the underlying law could

not effect a change in the law that would excuse the

unlawful seizure. See id. at 179 (holding “instructions

cannot change the nature of the transaction, or

legalize an act which without those instructions would

have been a plain trespass”). The rationale in Little—

which rejects the ability of officials to shield

themselves from liability by relying on a patently

invalid law has stood the test of time. See, e.g., Illinois

v. Krull, 480 U.S. 340, 355 (1987) (“A statute cannot

support objectively reasonable reliance if, in passing

the statute, the legislature wholly abandoned its

responsibility to enact constitutional laws. Nor can a

law enforcement officer be said to have acted in goodfaith reliance upon a statute if its provisions are such

that a reasonable officer should have known that the

statute was unconstitutional.”).

And, in the vast majority of cases where a

government actor is faced with neither the “gotcha” of

an intervening Supreme Court reversal of its prior

holdings nor an erroneous instruction from a superior,

the default maxim that “ignorance of the law is no

excuse,” ought to provide the rule of decision. Like

everyone else, state actors cannot say that they lacked

fair notice of what the law requires merely because

they are purportedly ignorant of that law.

The Right to Free Speech Is So WellKnown that Time Pressure Has

Significantly Less Relevance.

Whether qualified immunity is interpreted under

the original understanding of § 1983, such that

immunity is granted according to analogous common

law, see Imbler v. Pachtman, 424 U.S. 409, 421 (1976),

or under the “clearly established” standard where

government officials are immune unless their conduct

violates clearly established statutory or constitutional

rights of which a reasonable person would have

known, see Procunier v. Navarette, 434 U.S. 555, 565

(1978), fair notice that speech is protected is readily

satisfied because claims of First Amendment

infringement are among the most frequently

discussed and hotly asserted constitutional rights.

Indeed, this Court has heard First Amendment

speech cases on a consistent basis for years, often

arising from educational settings. See, e.g., Kennedy v.

Bremerton Sch. Dist., 142 S. Ct. 2407 (2022); Mahanoy

Area Sch. Dist. v. B. L., 141 S. Ct. 2038 (2021);

Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021). See

also various iconic rulings, such as Tinker v Des

Moines Independent Community School District, 393

U.S. 503 (1969); Keyishian v. Bd. of Regents, 385 U.S.

589 (1967); and W. Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943).

It is thus quite reasonable to expect public officials

with even the most rudimentary understanding of our

constitutional system to be well aware that

government attempts to suppress speech should be

met with a jaundiced eye and—at a minimum—that

they out to seek legal guidance if the lawful course of

action is unclear. As the Court held in Harlow v.

Fitzgerald, “[w]here an official could be expected to

know that certain conduct would violate statutory or

constitutional rights, he should be made to hesitate.”

457 U.S. 800, 815–19 (1982).

Speech rights are so well-established that even

short time horizons should suffice to allow public

officials to recognize when they are infringing the

First Amendment. For example, in Jordan v. Jenkins,

the Tenth Circuit rejected qualified immunity for law

enforcement officers who arrested a man for orally

challenging their treatment of his nephew at the site

of a car accident because it is well known that the

First Amendment protects citizens observing and

speaking to police. Jordan v. Jenkins, 73 F.4th 1162

(10th Cir. 2023).

There, John Jordan received word that his

nephew, J.J., had been in a car accident while driving

Mr. Jordan’s company truck. Id. at 1165. Mr. Jordan

traveled to the scene of the accident, and when he

arrived, he learned that J.J. could not locate the

truck’s insurance card. Id. While he called his office to

see if someone could track down the insurance

information, Mr. Jordan could hear his nephew being

questioned by the police. The form of the questioning

sounded to him as if the police were trying to influence

the content of his nephew’s official statement. Id.

When Mr. Jordan objected to the police officer’s

behavior, the police told him to leave, and when he

refused, the police deputy “commanded Mr. Jordan to

put his hands behind his back.” Id. 1166. When Mr.

Jordan did not immediately comply, the deputy

knocked Mr. Jordan down. Id. Mr. Jordan stuck out

his right arm to catch the ground but after he was on

his knees the deputy kicked out his arm, causing his

face to hit the dirt. Id. at 1166–67. “Mr. Jordan was

arrested and charged with obstruction of justice and

resisting arrest.” Id. at 1167. The charges,

unsurprisingly, were eventually dropped. Id.

Mr. Jordan brought a civil suit, “arguing . . . that

he had a First Amendment right under the U.S.

Constitution to engage in the conduct for which he

was arrested and prosecuted.” Id. at 1167. The Tenth

Circuit held that the officers were not protected by

qualified immunity because Mr. Jordan’s “verbal

criticism was clearly protected by the First

Amendment . . . meaning that there could be no

arguable probable cause for his arrest based on that

conduct.” Id, at 1168. This was so because in City of

Houston v. Hill, this Court stated that “the First

Amendment protects a significant amount of verbal

criticism and challenge directed at police officers.” Id.

at 1168 (quoting 482 U.S. 451, 453–54, (1987)).

Thus, even though the deputies argued that Hill

was distinguishable because it involved an antiharassment statute, rather than an unlawful arrest

claim under the Fourth Amendment, “[t]he

Constitution does not allow such speech to be made a

crime.” Jordan, 73 F.4th at 1169 (quoting Hill, 482

U.S. at 462). And, because the First Amendment

protects the right to criticize police, it must a fortiori

protect the right to remain in the area to be able to

criticize the observable police conduct. “Otherwise, an

officer could easily stop the protected criticism by

simply asking the individual to leave, thereby forcing

them to either depart (which would effectively silence

them) or face arrest.” Id. at 1169–70. Accordingly,

qualified immunity did not apply in Jordan even

though the infringement took place during actual lawenforcement activity.

Moreover, some forms of protected speech are so

well entrenched in broad terms that the doctrine of

qualified immunity actually incentivizes state actors

to avoid seeking legal advice from legal counsel who

may tell them those broad legal principles apply to

their specific circumstances. One potential example is

the compelled speech context.

For instance, in Barnette, the Court held that a

school could not compel students to salute the

American flag. 319 U.S. 624, 642 (1943). That case

upheld the right of students to remain silent in the

face of government demands that they speak and

fashioned one of the most oft-cited syntheses of free

speech jurisprudence: “If 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.” Barnette, 319 U.S. at 642.

Eighty years later, the constitutional right against

government-compelled speech remains vibrant. Just

last term, in 303 Creative LLC v. Elenis, this Court

held that it would violate the First Amendment for the

state of Colorado to compel a small business owner to

create speech she did not believe. 143 S. Ct. 2298,

2322 (2023). In 303 Creative, Colorado attempted to

create ambiguity around its public accommodations

law, by insisting that it was regulating conduct only,

and not speech; and similarly, that the law required

303 Creative only offer a “full menu” to every

customer, regardless of sexual orientation. The Court

properly and squarely rejected Colorado’s effort to

insert ambiguity into the legal status of the speech in

question. Nevertheless, this Court can observe how

state actors may assert meaningless distinctions

between cases, based on the argument that the exact

fact-pattern has never occurred before.

Similarly,

the

prohibition

viewpoint

discrimination is so well-established that any

government efforts in that area should immediately

raise red flags. See, e.g., Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)

(holding when the government targets “particular

views taken by speakers on a subject, the violation of

the First Amendment is all the more blatant.”). The

government’s

burden

justify

viewpoint

discrimination stands in stark contrast to the

presumption that qualified immunity applies, unless

there is ample precedent that squarely prohibits the

government’s action, because “[t]his Court’s

precedents do not permit governments to impose

content-based restrictions on speech without

persuasive evidence of a long (if heretofore

unrecognized) tradition to that effect.” National

Institute of Family & Life Advocates v. Becerra, 138 S.

Ct. 2361, 2372 (2018) (cleaned up) (“NIFLA”). The

significant gap between what state actors owe to

citizens and what state actors may be liable for in

court defies sound legal reasoning, particularly in

cases where time allows for basic research into

whether an actor’s questionable conduct may be

unlawful.

In cases like this one, in which over three years

elapsed during which Mr. Felkner raised an

assortment of claims, and multiple hearings and

appeals were held, purportedly to address those

claims, fair notice of the allegations was not only met,

but acknowledged. Any lingering doubt regarding the

lawfulness of the school’s policy and application to Mr.

Felkner could have been analyzed many times over to

determine whether the College met the high standard

acknowledged in NIFLA.

II.

Claims of Free Speech Infringement on

Campus are So Common That Qualified

Immunity Should Almost Never Apply.

Free speech infringement claims on college

campuses are so prevalent that a constant stream of

lawsuits flows through the federal courts. One might

think this torrent would eventually lead to settled law

protecting the speech rights of members of campus

communities. But that does not appear to be the case,

in large part due to the invocation of qualified

immunity.3 A handful of these cases make it to this

Court, which routinely decides in favor of protecting

speech. Supra at 10 (providing example cases).

Nevertheless, free speech cases keep coming, not just

to this Court, but across all the federal courts.

In addition to essentially nonstop litigation, many

universities have their own law schools, as well as

their own legal counsel. Why then do colleges seem so

unwilling to learn the lessons of past conflicts? It

seems reasonable to presume that qualified immunity

plays a role, encouraging universities to make minor

changes to their practices, evade adjudication, and

live to impose viewpoint conformity another day.

Here, such ideological conformity was the

acknowledged purpose of RIC’s practices. E.g.,

Felkner v. Rhode Island College, 291 A.3d 1001, 1004

(2023) (“According to Felkner, Professor Ryczek told

him that RIC was a ‘perspective school’ and that if

Felkner was to lobby on SB 525, it would need to be

‘in [RIC’s] perspective.’”).

But denying a rudimentary understanding of the

basic contours of First Amendment law is willful

blindness that should not be encouraged via

expansive application of judge-made doctrine. The

fair-notice element in cases of compelled speech and

viewpoint discrimination simply does not fit. Neither

3 A search of the federal courts database in Westlaw for First

Amendment cases involving a university or college reported since

the beginning of 2013 returns more than 300 cases that include

the term “qualified immunity”.

does the vigorous law enforcement justification, where

criminal activity via student speech is uncommon and

therefore inadequate to justify state censorship.

Moreover, the exact-match precedent requirement

drives university speech policies into a speech death

spiral, which could easily be avoided by holding

officials to an understanding of the law commensurate

with their position and access to legal advice. Justice

Thomas acknowledged the issue in the denial of

certiorari in Hoggard v. Rhodes, 141 S. Ct. 2421, 2422

(2021) (Thomas, J., statement respecting denial of

cert.) (“But why should university officers, who have

time to make calculated choices about enacting or

enforcing unconstitutional policies, receive the same

protection as a police officer who makes a split-second

decision to use force in a dangerous setting?”). And,

because qualified immunity is immunity from suit—

not just a defense to liability—then the lack of

precedent becomes self-fulfilling. The anti-precedent

trap was summarized thus by Judge Willett in his

dissent in Zadeh v. Robinson:

To rebut the officials’ qualified-immunity

defense and get to trial, [plaintiff] must

plead facts showing that the alleged

misconduct violated clearly established

law.

***

Controlling authority must explicitly

adopt the principle; or else there must be

a robust consensus of cases of persuasive

authority. Mere implication from

precedent doesn’t suffice.

***

But owing to a legal deus ex machina—

the clearly established prong of

qualified-immunity

analysis—the

violation eludes vindication.

***

Section 1983 meets Catch-22. Plaintiffs

must produce precedent even as fewer

courts

are

producing

precedent.

Important constitutional questions go

unanswered precisely because no one's

answered them before. Courts then rely

on that judicial silence to conclude

there's no equivalent case on the books.

No precedent = no clearly established

law = no liability. An Escherian

Stairwell. Heads government wins, tails

plaintiff loses.

928 F.3d 457, 474, 477, 478–80 (5th Cir. 2019).

In short, where university lawyers can make

strategic decisions about which cases to settle, moot,

or let go to judgment, qualified immunity distorts the

legal playing field, allowing future violations of the

First Amendment to be likewise shielded because past

violations never resulted in a final judgment. This

precedential death spiral should not be allowed to

stand, and the status quo merits review and reform.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully submitted,