Hoggard v. Rhodes

Hoggard’s petition to the Supreme Court doesn’t ask the Court to reconsider qualified immunity entirely, but it does call for important clarifications on how lower courts are supposed to identify “clearly established law.”

March 8, 2021 • Legal Briefs

In 2017, Ashlyn Hoggard, then a student at Arkansas State University‐​Jonesboro, set up a small table near the student union to recruit students for a new Turning Point USA chapter. But she was soon told by university officials, who were apparently relying on an unwritten “Tabling Policy,” that only registered student groups and University departments could table in this particular high‐​traffic location. The University had “Free Expression Areas” for unregistered groups like hers—but those had to be reserved 72‐​hours in advance. Despite Ashlyn’s objection, campus police ordered her to remove her table.

Hoggard brought a Section 1983 claim, and the Eighth Circuit held that the university officials did, indeed, violate her First Amendment rights, because the school’s “Freedom of Expression Policy” effectively amounted to a prior restraint on speech. But the court nevertheless granted qualified immunity to the university officials because no prior case in the Eighth Circuit had expressly held that a student in Hoggard’s position had a First Amendment right to speak without prior restraints.

Hoggard’s petition to the Supreme Court doesn’t ask the Court to reconsider qualified immunity entirely, but it does call for important clarifications on how lower courts are supposed to identify “clearly established law.” Specifically, when the reasoning of prior cases would be sufficient to put public officials on notice that their actions violated someone’s rights, should courts still grant immunity just because there was no explicit holding that such actions were unconstitutional? This particular uncertainty in the case law is just one example among many of how the “clearly established law” standard has created substantial confusion and uncertainty in the lower courts.

Cato has therefore filed an amicus brief in support of Hoggard’s petition, explaining in more detail both the legal and doctrinal shortcomings of the qualified immunity doctrine. Even though this petition doesn’t call for qualified immunity to be reconsidered entirely, the Court should still consider the questions presented with an eye toward the doctrine’s fundamentally shaky legal foundations. Ambiguities or uncertainties in the current case law, like those described in the brief, should be resolved in a manner that avoids exacerbating a pre‐​existing legal error—which necessarily means, limiting the scope of qualified immunity as much as possible within the bounds of existing precedent. The Court should also expand upon its recent decision in Taylor v. Riojas, which reaffirmed the basic legal tenet that courts should not grant immunity in cases of obvious constitutional violations, even when there’s no case exactly on point. Even though that principle has always formally been black‐​letter law, it has long been ignored in the lower courts. The Taylor decision is a good first step, but the brief per curiam opinion in that case will likely not be sufficient to resolve the persistent confusion in the lower courts over how the “clearly established law” standard should be understood and applied.

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