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Did you know qualified immunity has free speech implications?

Aug 6, 2021 by AFP

Mention of “qualified immunity” leaves many people thinking of law enforcement and police reform. That’s right. It’s also about much more than policing. It applies to all public employees – including those on public college campuses. That means it has a significant but little-discussed effect on campus free speech.

AFP Senior Vice President for Legal & Judicial Strategy Casey Mattox recently joined political columnist and commentator Matt K. Lewis on the Matt Lewis & The News podcast to discuss qualified immunity. They discuss its free speech implications and what that means for students at colleges and universities.

Listen to the full discussion between Mattox and Lewis here.

Qualified immunity is a Supreme Court creation that helps to protect public officials from liability when they violate someone’s constitutional rights as long as the law was not “clearly established.”

The end result, as the Cato Institute notes, is that “it is entirely possible – and quite common – for courts to hold that government agents did violate someone’s rights, but that the illegality of their conduct wasn’t sufficiently obvious for them to be held liable to the victim of their misconduct.”

On college campuses, this means that qualified immunity disincentivizes public employees – from police to student affairs staff – from protecting students’ and faculty’s constitutional rights. When public officials know they won’t be penalized, they may err on the side of censorship rather than on the side of free speech.

Last summer, Mattox detailed in the Daily Wire why qualified immunity warrants a healthy skepticism:

“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.”

Protecting free speech and promoting openness on campus means accountability for public officials entrusted with upholding students’ and faculty’s First Amendment rights.

Check out more in the episode with Lewis and Mattox. Learn about the rest of our work protecting foundational freedoms here.