Two attorneys who served as legal observers at a 2015 protest in St. Louis sued police officers who shot tear gas at the observers after they left the protest – and even though the observers had complied with police orders and wore bright green hats bearing the words “Legal Observer.” One of the observers’ legal claims was for retaliation against them for their First Amendment activity. The district court ruled that the observers’ case could proceed to trial, but in early 2023, the court of appeals reversed, granting judgment to the officers on most of the claims.

The court ruled that written words, a form of pure speech, are not presumptively entitled to First Amendment protection when they are printed on clothing. Instead, it held that they are protected only if “everyone” would understand them to express a particularized message—here, a “pro-protest” message. On that basis, the court deemed the words emblazoned on petitioners’ hats—“National Lawyers Guild Legal Observer”—wholly unprotected by the First Amendment.

The court further ruled that the officers were entitled to “qualified immunity”—meaning complete protection from the lawsuit—because it was not “clearly established” that people have a constitutional right to unobtrusively observe and record the police in public.

Together with the National ACLU and the ACLU of Missouri, in September 2023 we petitioned the Supreme Court to review the case and correct these errors. The appeals court's First Amendment ruling gives the government license to stifle or retaliate against speech simply because a written message appears printed on clothing and its substantive meaning is arguably unclear. And the doctrine of qualified immunity is problematic for the enforcement of constitutional rights generally. Under that rule, when a person sues officials for violating the constitution, the official gets off the hook if the law was not “clearly established.” This doctrine makes 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 well-established enough for them to be held liable. In practice, “clearly established law” is a very hard standard to meet. It generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with very similar facts. The practical effect is that public officials—especially members of law enforcement—routinely get away with unconstitutional misconduct, simply because no one else has committed that precise kind of misconduct before. That is what happened here.

We have previously asked the Court to revisit qualified immunity, in Baxter v. Bracey, in which the Court denied review in 2020 over Justice Thomas’s powerful dissent. We are again asking the Court to reconsider this doctrine in light of new scholarship demonstrating that the entire legal basis for the Court’s original creation of qualified immunity half a century ago was flawed.

In February 2024, the Supreme Court denied certiorari.

Date filed

September 7, 2023