Freedom of Speech and Qualified Immunity

Freedom of speech and qualified immunity (QI). That’s the topic of a recent USA Today op-ed. The piece focuses on how QI protects college administrators. Specifically, when they violate a student’s First Amendment rights.

Greg Lukianoff and Adam Goldstein wrote this op-ed. They work for the Foundation for Individual Rights. In their piece, they call out QI. They do so because the doctrine shields public officials who violate someone’s individual rights. In this case, the individual right to freedom of speech. 

As Lukianoff and Goldstein point out, it’s not only bad cops who unjustly benefit from QI. For example, campus officials who censor college students can also claim QI. “Administrators rely on qualified immunity to avoid consequences when they engage in intentional, considered and collaborative efforts to violate civil liberties,” they write.  

Lukianoff and Goldstein then mention three examples of such violations. First, when administrators punished a medical student for a pro-life Facebook post. Second, when campus officials investigated two students for holding a freedom of speech demonstration. Third, when a university denied a student her right to set up an informational table. 

“Qualified immunity is consistently invoked to protect those decisions, no matter how transparently unconstitutional,” Lukianoff and Goldstein state. The doctrine, they note, “has deeply harmed civil rights on campus.” 

These civil rights violations are concerning to people of all ideological backgrounds. Case in point: Clarence Thomas. Lukianoff and Goldstein point out that Justice Thomas is one of QI’s most notable critics. Furthermore, he’s also the most conservative judge on the Supreme Court. Per USA Today, Justice Thomas has much to say about the topic. Recently, he testified:

“[W]hy 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?”

Bottom line: university officers should never receive these protections. Qualified immunity is unethical. The doctrine allows those in power to abuse their authority. It permits bad public officials to violate someone’s rights. This means corrupt cops who use excessive force. And it also means college officials who deny freedom of speech. 

“Campus administrators, consider yourselves on notice,” Greg Lukianoff and Adam Goldstein conclude. “If you violate the First Amendment on campus, you could and should be held personally accountable.” 

Read the entire op-ed on freedom of speech and QI here.