James C. Wetherbe v. Texas Tech University System, et al.

This is a First Amendment retaliation lawsuit under 42 U.S.C. § 1983. Around 1950, this Court first asked whether the common law in 1871 would have accorded immunity for a tort claim analogous to a claim under § 1983. However, not long after, this Court discarded the common law approach and established today’s qualified immunity framework, including the clearly established law requirement, to avoid the costs of litigation. Assuming there is a common law basis for immunity in certain circumstances, the text of § 1983 makes no mention of a clearly established law requirement. Does qualified immunity’s clearly established law requirement have any basis in law, especially in First Amendment free speech situations where splitsecond, life and death decisions are not applicable?

If this Court refuses to abandon the clearly established law requirement, then it should clarify the level of generality used to evaluate free speech claims. The Fifth Circuit and other circuits require cases directly on point, by requiring that the specific speech at issue was a matter of public concern prior to an official’s misconduct. There have been many, and there will be limitless future free speech violations under this approach because there are limitless topics of free speech, and most of them have not previously been held to constitute a matter of public concern. In the free speech context, does qualified immunity’s clearly established law requirement require law clearly establishing that the subject matter of specific speech was a matter of public concern before the time of a constitutional violation?