Freedom Foundation

Freedom Foundation’s Brief in Doughty Aims to Safeguard First Amendment

On June 3, the Freedom Foundation filed an amicus curiae (friend of the court) brief with the U.S. Supreme Court in Doughty v. SEIU Local 1984, a case brought by our friends at the National Right to Work Foundation.

Doughty concerns whether government workers suing to protect their First Amendment rights against compelled speech are required to show the offending union intended to violate their rights, or whether proof of the violation alone is sufficient.

In 2018, SCOTUS affirmed that government unions cannot take money from public employees without their affirmative consent. Otherwise, their First Amendment rights against compelled speech are violated. So, shortly after the decision the plaintiffs in Doughty brought claims against their local government union alleging it had violated their First Amendment rights against compelled speech by taking their money without their consent.

But in a strange move, the U.S. Court of Appeals for the First Circuit found on appeal that, because the unions may not have intended to violate the plaintiffs’ First Amendment rights, they could not pursue their case.

Not only did this ruling make no legal sense, it turned the framework for civil rights cases in the United States on its head.

After the American Civil War, the 14th Amendment was added to the Constitution in order to fully protect the rights of all citizens of the United States to equal protection and due process of law.

Specifically, the amendment was targeted at newly elected southern state officials (and former confederates) who were passing laws targeting newly freed slaves and their union sympathizers. When those officials continued their abusive behavior despite the amendment’s passage, Congress decided to enact a new federal law affected allowing citizens to sue those same state officials as a way to enforce the 14th Amendment.

In the modern era, this statute, which became codified and colloquially known as “Section 1983,” became the primary way individuals from across the ideological spectrum in the United States enforce their civil rights against state officials acting unconstitutionally.

Fast forward to the Doughty case.

The lower court in Doughty decided that since there are state personal injury claims that require a showing that someone intended to violate someone’s legal rights, they could import that requirement into federal Section 1983 claims.

And presto, the plaintiffs don’t have a case.

There is just one problem: There is nothing in the text, history or function of Section 1983 that allows federal judges to make this kind of change.

After all, if judges can just decide what parts of the Bill of Rights should get full protection and which can simply be ignored because judges prefer that they be ignored, how can these protections still be considered “rights?”

To the framers of Section 1983, what mattered was a state official violating your rights, and making sure they had to pay the price and it would not happen again. Nowhere do they claim you must also peer into their heads for what they intended.

The Supreme Court should accept the Doughty case and clarify these principles.