|Paul v. Davis
[ Rehnquist ]
[ Brennan ]
Paul v. Davis
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs and MR. JUSTICE WHITE concurs in part, dissenting.
I dissent. The Court today holds that police officials, acting in their official capacities as law enforcers, may, on their own initiative and without trial, constitutionally condemn innocent individuals as criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our society. If there are no constitutional restraints on such oppressive behavior, the safeguards constitutionally accorded an accused in a criminal trial are rendered a sham, and no individual can feel secure that he will not be arbitrarily singled out for similar ex parte punishment by those primarily charged with fair enforcement of the law. The Court accomplishes this result by excluding a person's interest in his good name and reputation from all constitutional protection, regardless of the character of or necessity for the government's actions. The result, which is demonstrably inconsistent with our prior case law and unduly restrictive in its construction of our precious Bill of Rights, is one in which I cannot concur.
To clarify what is at issue in this case, it is first necessary to dispel some misconceptions apparent in the Court's opinion. Title 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within [p715] the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Thus, as the Court indicates, ante at 696-697, respondent's complaint, to be cognizable under § 1983, must allege both a deprivation of a constitutional right [n1] and the effectuation of that deprivation under color of law. See, e.g., Adickes v. Kress & Co., 398 U.S. 144, 150 (1970). But the implication, see ante at 697-699, that the existence vel non of a state remedy -- for example, a cause of action for defamation -- is relevant to the determination whether there is a cause of action under § 1983, is wholly unfounded.
It is no answer that the State has a law which, if enforced, would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.
Monroe v. Pape, 365 U.S. 167, 183 (1961). See also, e.g., McNeese v. Board of Education, 373 U.S. 668, 671-672 (1963). Indeed, even if the Court were creating a novel doctrine that state law is in any way relevant, it would be incumbent upon the Court to inquire whether respondent has an adequate remedy under Kentucky law or whether petitioners would be immunized by state doctrines of official or sovereign immunity. The Court, however, undertakes no such inquiry.
Equally irrelevant is the Court's statement that
[c]oncededly, if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law.
Ante at 698. The action complained of here is "state [p716] action" allegedly in violation of the Fourteenth Amendment, and that Amendment, which is only designed to prohibit "state" action, clearly renders unconstitutional actions taken by state officials that would merely be criminal or tortious if engaged in by those acting in their private capacities. Of course, if a private citizen enters the home of another, manacles and threatens the owner, and searches the house in the course of a robbery, he would be criminally and civilly liable under state law, but no constitutional rights of the owner would be implicated. However, if state police officials engage in the same acts in the course of a narcotics investigation, the owner may maintain a damages action against the police under § 1983 for deprivation of constitutional rights "under color of" state law. Cf. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 390-392 (1971). See also, e.g., Monroe v. Pape, supra. In short, it is difficult to believe that the Court seriously suggests, see ante at 697-698, that there is some anomaly in the distinction, for constitutional purposes, between tortious conduct committed by a private citizen and the same conduct committed by state officials under color of state law.
It may be that I misunderstand the thrust of Part I of the Court's opinion. Perhaps the Court is not questioning the involvement of a constitutional "liberty" or "property" interest in this case, but rather whether the deprivation of those interests was accomplished "under color of" state law. The Court's expressed concern that, but for today's decision, negligent tortious behavior by state officials might constitute a § 1983 violation, see ante at 698, suggests this reading. [n2] But that concern is [p717] groundless. An official's actions are not "under color of" law merely because he is an official; an off-duty policeman's discipline of his own children, for example, would not constitute conduct "under color of" law. The essential element of this type of § 1983 action [n3] is abuse of his official position.
Congress, in enacting [§ 1983], meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position.
Monroe v. Pape, supra at 172 (emphasis supplied). Section 1983 focuses on
[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.
United States v. Classic, 313 U.S. 299, 326 (1941) (emphasis supplied). Moreover, whether or not mere negligent official conduct in the course of duty can ever constitute such abuse of power, the police officials here concede that their conduct was intentional, and was undertaken in their official capacities. Therefore, beyond peradventure, it is action taken under color of law, see ante at 697, and n. 2, and it is disingenuous for the Court to argue, see ante at 700-701, that respondent is seeking to convert § 1983 into a generalized font of tort law. The only issue properly presented by this case is whether petitioners' intentional conduct infringed any of respondent's "liberty" or "property" interests without due process of law, and that is the question to be addressed. I am [p718] persuaded that respondent has alleged a case of such infringement, and therefore of a violation of § 1983. The stark fact is that the police here have officially imposed on respondent the stigmatizing label "criminal" without the salutary and constitutionally mandated safeguards of a criminal trial. The Court concedes that this action will have deleterious consequences for respondent. For 15 years, the police had prepared and circulated similar lists, not with respect to shoplifting alone, but also for other offenses. App. 19, 27-28. Included in the five-page list in which respondent's name and "mug shot" appeared were numerous individuals who, like respondent, were never convicted of any criminal activity and whose only "offense" was having once been arrested. [n4] [p719] Indeed, respondent was arrested over 17 months before the flyer was distributed, [n5] not by state law enforcement authorities, but by a store's private security police, and nothing in the record appears to suggest the existence at that time of even constitutionally sufficient probable cause for that single arrest on a shoplifting charge. [n6] Nevertheless, petitioners had 1,000 flyers printed (800 were distributed widely throughout the Louisville business community) proclaiming that the individuals identified [p720] by name and picture were "subjects known to be active in this criminal field [shoplifting]," and trumpeting the "fact" that each page depicted "Active Shoplifters" (emphasis supplied). [n7]
Although accepting the truth of the allegation, as we must on the motion to dismiss, see, e.g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175 (1965); cf. Conley v. Gibson, 355 U.S. 41 (1957), that dissemination of this flyer would "seriously impair [respondent's] future employment opportunities" and "inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended," ante at 697, the Court characterizes the allegation as "mere defamation," involving no infringement of constitutionally protected interests. E.g., ante at 706. This is because, the Court holds, neither a "liberty" nor a "property" interest was invaded by the injury done respondent's reputation, and therefore no violation of § 1983 or the Fourteenth Amendment was alleged. I wholly disagree.
It is important, to paraphrase the Court, that "[w]e, too, [should] pause to consider the result should [the Court's] interpretation of § 1983 and of the Fourteenth Amendment be accepted." Ante at 698. There is no attempt by the Court to analyze the question as one of reconciliation of constitutionally protected personal rights and the exigencies of law enforcement. No effort is made to distinguish the "defamation" that occurs when a grand jury indicts an accused from the "defamation" that occurs when executive officials arbitrarily and without [p721] trial declare a person an "active criminal." [n8] Rather, the Court, by mere fiat and with no analysis, wholly excludes personal interest in reputation from the ambit of "life, liberty, or property" under the Fifth and Fourteenth Amendments, thus rendering due process concerns never applicable to the official stigmatization, however arbitrary, of an individual. The logical and disturbing corollary of this holding is that no due process infirmities would inhere in a statute constituting a commission to conduct ex parte trials of individuals, so long as the only official judgment pronounced was limited to the public condemnation and branding of a person as a Communist, a traitor, an "active murderer," a homosexual, or any other mark that "merely" carries social opprobrium. The potential of today's decision is frightening for a free people. [n9] That decision surely finds no support in our relevant constitutional jurisprudence. [p722]
Board of Regents v. Roth, 408 U.S. 564, 572 (1972).
Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual . . . generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923). [n10] Certainly the enjoyment of [p723] one's good name and reputation has been recognized repeatedly in our case as being among the most cherished of rights enjoyed by a free people, and therefore as falling within the concept of personal "liberty."
[A]s MR. JUSTICE STEWART has reminded us, the individual's right to the protection of his own good name
reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (concurring opinion).
"[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437. Wieman v. Updegraff, 344 U.S. 183, 191; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123; United States v. Lovett, 328 U.S. 303, 316-317; Peters v. Hobby, 349 U.S. 331, 352 (DOUGLAS, J., concurring). See Cafeteria Workers v. McElroy, 367 U.S. 886, 898.
Board of Regents v. Roth, supra, at 573. See also, e.g., Greene v. McElroy, 360 U.S. 474, 496 (1959); Cafeteria Workers v. McElroy, 367 U.S. 886, 899-902 (1961) (BRENNAN, J., dissenting); Goss v. Lopez, 419 U.S. 565, 574-575 (1975). In the criminal justice system, this interest is given concrete protection through the presumption of innocence and the prohibition of state-imposed punishment unless the State can demonstrate beyond a reasonable doubt, at a public trial with the attendant constitutional safeguards, that a particular individual has engaged in proscribed criminal conduct.
[B]ecause of the certainty that [one found guilty of criminal behavior] would be stigmatized by the conviction . . . , a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.
In re Winship, 397 U.S. 358, 363-364 (1970).
It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing [p725] a proper factfinder of his guilt with utmost certainty.
Id. at 364. [n12]
Today's decision marks a clear retreat from Jenkins v. McKeithen, 395 U.S. 411 (1969), a case closely akin to the factual pattern of the instant case, and yet essentially ignored by the Court. Jenkins, which was also an action brought under § 1983, both recognized that the public branding of an individual implicates interests cognizable as either "liberty" or "property" and held that such public condemnation cannot be accomplished without procedural safeguards designed to eliminate arbitrary or capricious executive action. Jenkins involved the constitutionality of the Louisiana Labor-Management Commission of Inquiry, an executive agency whose "very purpose . . . is to find persons guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings." 395 U.S. at 424.
[T]he personal and economic consequences alleged to flow from such actions are sufficient to meet the requirement that appellant prove a legally redressable injury. Those consequences would certainly be actionable if caused by a private party, and thus should be sufficient to accord appellant standing. See Greene v. McElroy, 360 U.S. 474, 493, n. 22 [p726] (1959); Joint Anti-Fascist Refugee Committee v. McGrath, supra at 140-141 (opinion of Burton, J.); id. at 151-160 (Frankfurter, J., concurring). It is no answer that the Commission has not itself tried to impose any direct sanctions on appellant; it is enough that the Commission's alleged actions will have a substantial impact on him. . . . Appellant's allegations go beyond the normal publicity attending criminal prosecution; he alleges a concerted attempt publicly to brand him a criminal without a trial.
Id. at 421-425. Significantly, we noted that one defect in the Commission was that it "exercises a function very much akin to making an official adjudication of criminal culpability," and that it was "concerned only with exposing violations of criminal laws by specific individuals." Id. at 427.
[I]t is empowered to be used, and allegedly is used, to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public.
Id. at 428. See also ibid., quoting Hannah v. Larche, 363 U.S. 420, 488 (1960) (Frankfurter, J., concurring in result). Although three Justices in dissent would have dismissed the complaint for lack of standing, since there were no allegations that the appellant would be investigated, called as a witness, or named in the Commission's findings, 395 U.S. at 436 (Harlan, J., dissenting), they nevertheless observed, id. at 438:
[There is] a constitutionally significant distinction between two kinds of governmental bodies. The first is an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing. To the extent that such a determination -- whether called a "finding" or an "adjudication" [p727] -- finally and directly affects the substantial personal interests, I do not doubt that the Due Process Clause may require that it be accompanied by many of the traditional adjudicatory procedural safeguards. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951).
See also id. at 442. Thus, although the Court was divided on the particular procedural safeguards that would be necessary in particular circumstances, the common point of agreement, and the one that the Court today inexplicably rejects, was that the official characterization of an individual as a criminal affects a constitutional "liberty" interest.
The Court, however, relegates its discussion of Jenkins to a dissembling footnote. First, the Court ignores the fact that the Court in Jenkins clearly recognized a constitutional "liberty" or "property" interest in reputation sufficient to invoke the strictures of the Fourteenth Amendment. [n13] It baffles me how, in the face of that holding, the Court can come to today's conclusion by reliance on the fact that the conduct in question does not "come within the language" of the dissent in Jenkins, ante at 706 n. 4. Second, and more important, the Court's footnote manifests the same confusion that pervades the remainder of its opinion: it simply fails to recognize the crucial difference between the question whether there is a personal interest in one's good name and reputation that is constitutionally cognizable as a "liberty" or "property" interest within the Fourteenth and Fifth Amendment Due Process Clauses, and the totally separate question whether particular government [p728] action with respect to that interest satisfies the mandates of due process. See, e.g., supra at 720-721, and n. 8. Although the dissenters in Jenkins thought that the Commission's procedures complied with due process, they clearly believed that there was a personal interest that had to be weighed in reaching that conclusion. [n14] The dissenters in Jenkins, like the Court in Hannah v. Larche, supra, held the view that, in the context of a purely investigatory, factfinding agency, full trial safeguards are not required to comply with due process. But that question would never have been reached unless there were some constitutionally cognizable personal interest making the inquiry necessary -- the interest in reputation that is affected [p729] by public "exposure." The Court, by contrast, now implicitly repudiates a substantial body of case law and finds no such constitutionally cognizable interest in a person's reputation, thus foreclosing any inquiry into the procedural protections accorded that interest in a given situation.
In short, it is difficult to fathom what renders respondent's interest in his reputation somehow different from the personal interest affected by
"an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing."
Ante at 706 n. 4, quoting 395 U.S. at 438. Surely the difference cannot be found in the fact that police officials, rather than a statutory "agency," engaged in the stigmatizing conduct, for both situations involve the requisite action "under color of" law. Ante at 697 n. 2. Nor can the difference be found in the argument that petitioners' actions were "serving any other public interest," for that consideration only affects the outcome of the due process balance in a particular case, not whether there is a personal "liberty" interest to be weighed against the government interests supposedly justifying the State's official actions. It is remarkable that the Court, which is so determined to parse the language of other cases, see generally ante, Part II, can be thus oblivious to the fact that every Member of the Court so recently felt that the intentional, public exposure of alleged wrongdoing -- like the branding of an individual as an "active shoplifter" -- implicates a constitutionally protected "liberty" or "property" interest and requires analysis as to whether procedures adequate to satisfy due process were accorded the accused by the State.
Moreover, Wisconsin v. Constantineau, 400 U.S. 433 (1971), which was relied on by the Court of Appeals in this case, did not rely at all on the fact asserted by the [p730] Court today as controlling -- namely, upon the fact that "posting" denied Ms. Constantineau the right to purchase alcohol for a year, ante at 708-709. Rather, Constantineau stated:
The only issue present here is whether the label or characterization given a person by "posting," though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard.
400 U.S. at 436 (emphasis supplied). In addition to the statements quoted by the Court, ante at 707-708, the Court in Constantineau continued:
"Posting" under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victim of an official's caprice. Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.
400 U.S. at 437.
"[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society."
Ibid., quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter,J.,concurring) (emphasis supplied). There again, the fact that government stigmatization of an individual implicates constitutionally protected interests was made plain. [n15] [p731]
Thus, Jenkins and Constantineau, and the decisions upon which they relied, are cogent authority that a person's interest in his good name and reputation falls [p732] within the broad term "liberty" and clearly require that the government afford procedural protections before infringing that name and reputation by branding a person as a criminal. The Court is reduced to discrediting the clear thrust of Constantineau and Jenkins by excluding the interest in reputation from all constitutional protection "if there is any other possible interpretation" by which to deny their force as precedent according constitutional protection for the interest in reputation. [n16] Ante at 708. The Court's approach -- oblivious both to Mr. Chief Justice Marshall's admonition that "we must never forget, that it is a constitution we are expounding," M'Culloch v. Maryland, 4 Wheat. 316, 407 (1819), and to the teaching of cases such as Roth and Meyer, which were attentive to the necessary breadth of constitutional "liberty" and "property" interests, see nn. 10, 15, supra -- is to water down our prior precedents by reinterpreting [p733] them as confined to injury to reputation that affects an individual's employment prospects or, as "a right or status previously recognized by state law [that the State] distinctly altered or extinguished." Ante at 711. See also, e.g., ante at 701, 704-706, 709-710, 710-712. The obvious answer is that such references in those cases (when there even were such references) concerned the particular fact situations presented, and in nowise implied any limitation upon the application of the principles announced. E.g., ante at 709-710, quoting Board of Regents v. Roth, 408 U.S. at 573. See n. 15, supra. Discussions of impact upon future employment opportunities were nothing more than recognition of the logical and natural consequences flowing from the stigma condemned. E.g., ante at 705-706, quoting Cafeteria Workers v. McElroy, 367 U.S. at 898. [n17] [p734]
Moreover, the analysis has a hollow ring in light of the Court's acceptance of the truth of the allegation that the "active shoplifter" label would "seriously impair [respondent's] future employment opportunities." Ante at 697. This is clear recognition that an official "badge of infamy" affects tangible interests of the defamed individual, and not merely an abstract interest in how people view him; for the "badge of infamy" has serious consequences in its impact on no less than the opportunities open to him to enjoy life, liberty, and the pursuit of happiness. It is inexplicable how the Court can say that a person's status is "altered" when the State suspends him from school, revokes his driver's license, fires him from a job, or denies him the right to purchase a drink of alcohol, but is in no way "altered" when it officially pins upon him the brand of a criminal, particularly since the Court recognizes how deleterious will be the consequences that inevitably flow from its official act. See, e.g., ante at 708-709, 711-712. Our precedents clearly mandate that a person's interest in his good name and reputation is cognizable as a "liberty" interest within the meaning of the Due Process Clause, and the Court has simply failed to distinguish those precedents in any rational manner in holding that no invasion of a "liberty" interest was effected in the official stigmatizing of respondent as a criminal without any "process" whatsoever.
I have always thought that one of this Court's most important roles is to provide a formidable bulwark against governmental violation of the constitutional safeguards [p735] securing in our free society the legitimate expectations of every person to innate human dignity and sense of worth. It is a regrettable abdication of that role and a saddening denigration of our majestic Bill of Rights when the Court tolerates arbitrary and capricious official conduct branding an individual as a criminal without compliance with constitutional procedures designed to ensure the fair and impartial ascertainment of criminal culpability. Today's decision must surely be a short-lived aberration. [n18]
1. Deprivations of rights secured by "laws" as well as by the Constitution are actionable under § 1983. Only an alleged constitutional violation is involved in this case. Ante at 697 n. 1.
2. Indeed, it would be difficult to interpret that discussion as anything but a discussion of the "under color of" law requirement of § 1983, which is not involved in this case and which has no relationship to the question whether a "liberty" or "property" interest is involved here. There is simply no way in which the Court, despite today's treatment of the terms "liberty" and "property," could declare that the loss of a person's life is not an interest cognizable within the "life" portion of the Due Process Clause. See ante at 698-699.
3. Of course, in addition to providing a remedy when an official abuses his position, § 1983 is designed to provide a remedy when a state statute itself abridges constitutional rights, when a remedy under state law is inadequate to protect constitutional rights, and when a state remedy, though adequate in theory, is unavailable in practice. See, e.g., Monroe v. Pape, 365 U.S. 167, 173-174 (1961).
4. Petitioners testified:
Q. And you didn't limit this to persons who had been convicted of the offense of shoplifting, is that correct?
A. That's correct.
Q. Now, my question is what is the basis for your conclusion that a person -- a person who has been arrested for the offense of shoplifting -- is an active shoplifter?
A. The very fact that he's been arrested for the charge of shoplifting and evidence presented to that effect.
Q. And this is not based on any finding of the court?
A. No, sir.
Q. All right. So that, if my understanding is correct, this included all persons who were arrested in '71 and '72?
A. That's true.
Q. And selected persons from -- who were arrested in previous years?
A. . . . I assume from the number of persons here that many of these have been arrested many years back down the line consecutively. . . .
Q. So there's no distinction made between persons whose arrest terminated in convictions and persons whose arrest did not terminate in convictions?
A. No, sir.
Id. at 29.
5. Respondent was arrested on June 14, 1971. He pleaded not guilty and the charge was "filed away with leave [to reinstate]" on September 22, 1971. The distribution of the flyer was on December 5, 1972. The shoplifting charge was dismissed on December 11, 1972, and respondent filed his complaint the following day. He sought compensatory and punitive damages, and an injunction prohibiting similar dissemination of such flyers in the future and ordering petitioners to obtain the return of the flyers and to instruct those who received them that respondent and the others pictured in the flyers were not "active shoplifters," and had not been convicted of shoplifting or any similar offense. Respondent's only other arrest took place five years previously for a speeding offense.
6. The Court, by totally excluding a person's interest in his reputation from any cognizance under the Due Process Clause, would be forced to reach the same conclusion that there is no cause of action under § 1983 -- even to obtain injunctive relief -- if petitioners had randomly selected names from the Louisville telephone directory for inclusion in the "active shoplifters" flyer. Of course, even if a person has been arrested on a constitutionally sufficient basis, that does not justify the State's treating him as a criminal.
The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.
Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957). The constitutional presumption of innocence, the requirement that conviction for a crime must be based on proof beyond a reasonable doubt, and the other safeguards of a criminal trial are obviously designed, at least in part, to give concrete meaning to this fact.
7. At one point in the flyer, there was also an indication that "[t]hese persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas." The stated purpose of the flyer was "so that you, the businessman . . . may inform your security personnel to watch for these subjects." Ante at 695 (emphasis supplied).
8. Indeed, the Court's opinion confuses the two separate questions of whether reputation is a "liberty" or "property" interest and whether, in a particular context, state action with respect to that interest is a violation of due process. E.g., ante at 698-699, 701-702, and n. 3 (assuming that, if reputation is a cognizable liberty or property interest, every defamation by a public official would be an offense against the Due Process Clause of the Fifth or Fourteenth Amendment).
9. Today's holding places a vast and arbitrary power in the hands of federal and state officials. It is not difficult to conceive of a police department, dissatisfied with what it perceives to be the dilatory nature or lack of efficacy of the judicial system in dealing with criminal defendants, publishing periodic lists of "active rapists," "active larcenists," or other "known criminals." The hardships resulting from this official stigmatization -- loss of employment and educational opportunities, creation of impediments to professional licensing, and the imposition of general obstacles to the right of all free men to the pursuit of happiness -- will often be as severe as actual incarceration, and the Court today invites and condones such lawless action by those who wish to inflict punishment without compliance with the procedural safeguards constitutionally required of the criminal justice system.
10. One of the more questionable assertions made by the Court suggests that "liberty" or "property" interests are protected only if they are recognized under state law or protected by one of the specific guarantees of the Bill of Rights. Ante at 710, and n. 5. To be sure, the Court has held that
[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (emphasis supplied). See also, e.g., Goss v. Lopez, 419 U.S. 565, 572-573 (1975). However, it should also be clear that, if the Federal Government, for example, creates an entitlement to some benefit, the States cannot infringe a person's enjoyment of that "property" interest without compliance with the dictates of due process. Moreover, we have never restricted "liberty" interests in the manner the Court today attempts to do. The Due Process Clause of the Fifth Amendment, like the Due Process Clause of the Fourteenth Amendment, protects "liberty" interests. But the content of "liberty" in those Clauses has never been thought to depend on recognition of an interest by the State or Federal Government, and has never been restricted to interests explicitly recognized by other provisions of the Bill of Rights:
"While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration, and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399.
Board of Regents v. Roth, supra at 572. See also, e.g., Arnett v. Kennedy, 416 U.S. 134, 157 (1974) (opinion of REHNQUIST, J.). It should thus be clear that much of the content of "liberty" has no tie whatsoever to particular provisions of the Bill of Rights, and the Court today gives no explanation for its narrowing of that content.
11. It is strange that the Court should hold that the interest in one's good name and reputation is not embraced within the concept of "liberty" or "property" under the Fourteenth Amendment, and yet hold that that same interest, when recognized under state law, is sufficient to overcome the specific protections of the First Amendment. See, e.g., Gertz v. Robert Welch, Inc.; Time, Inc. v. Firestone, ante, p. 448.
12. The Court's insensitivity to these constitutional dictates is particularly evident when it declares that, because respondent had never been brought to trial, "his guilt or innocence of that offense [shoplifting] had never been resolved." Ante at 696. It is hard to conceive of a more devastating flouting of the presumption of innocence, "that bedrock ‘axiomatic and elementary' principle whose ‘enforcement lies at the foundation of the administration of our criminal law.'" In re Winship, 397 U.S. at 363, quoting ‘Coffin v. United States, 156 U.S. 432, 453 (1895). Moreover, even if a person was once convicted of a crime, that does not mean that he is "actively engaged" in that activity now.
13. Of course, such oversights are typical of today's opinion. Compare, e.g., the discussions of Goss v. Lopez, 419 U.S. 565 (1975), ante at 710, and n. 15, infra; the discussions of Wisconsin v. Constantineau, 400 U.S. 433 (1971), ante at 707-709, and infra at 729-730.
14. For example, in addition to the statements already quoted in text, the dissenters observed:
The Commission thus bears close resemblance to certain federal administrative agencies. . . . These agencies have one salient feature in common, which distinguishes them from those designed simply to "expose." None of them is the final arbiter of anyone's guilt or innocence. Each, rather, plays only a preliminary role, designed, in the usual course of events, to initiate a subsequent formal proceeding in which the accused will enjoy the full panoply of procedural safeguards. For this reason, and because such agencies could not otherwise practicably pursue their investigative functions, they have not been required to follow "adjudicatory" procedures.
395 U.S. at 439.
Although in this respect the Commission is not different from the federal agencies discussed above, I am not ready to say that the collateral consequences of government-sanctioned opprobrium may not, under some circumstances, entitle a person to some right, consistent with the Commission's efficient performance of its investigatory duties, to have his public say in rebuttal. However, the Commission's procedures are far from being niggardly in this respect. . . .
. . . It may be that some of my Brethren understand the complaint to allege that, in fact, the Commission acts primarily as an agency of "exposure," rather than one which serves the ends required by the state statutes. If so -- although I do not believe that the complaint can be reasonably thus construed -- the area of disagreement between us may be small or nonexistent.
Id. at 442.
15. Even more recently, in Goss v. Lopez, 419 U.S. 565 (1975), we recognized that students may not be suspended from school without being accorded due process safeguards. We explicitly referred to "the liberty interest in reputation" implicated by such suspensions, id. at 576, based upon the fact that suspension for certain actions would stigmatize the student, id. at 574-575:
The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Board of Regents v. Roth, supra at 573. School authorities here suspended appellees from school for periods of up to 10 days based on charges of misconduct. If sustained and recorded, those charges could seriously damage the students' standing with their fellow pupils and their teachers, as well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution.
The Court states that today's holding is "quite consistent" with Goss because
Ohio law conferred a right upon all children to attend school, and . . . the act of the school officials suspending the student there involved resulted in a denial or deprivation of that right.
Ante at 710. However, that was only one-half of the holding in Goss. The Ohio law established a property interest of which the Court held a student would not be deprived without being accorded due process. 419 U.S. at 573-574. However, the Court also specifically recognized that there was an independent liberty interest implicated in the case, not dependent upon the statutory right to attend school, but based, as noted above, on the fact that suspension for certain conduct could affect a student's "good name, reputation, honor, or integrity." Id. at 574-575.
Similarly, the idea that the language in Board of Regents v. Roth, supra, is
quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable,
ante at 709, borders on the absurd. The Court in Roth, like the Court in Goss, explicitly quoted the language from Constantineau that the Court today denigrates, ante at 707-709, and it was clear that Roth was focusing on stigmatization as such. We said there that, when due process safeguards are required in such situations, the "purpose of such notice and hearing is to provide the person an opportunity to clear his name," 408 U.S. at 573 n. 12 (emphasis supplied), and only found no requirement for due process safeguards because, "[i]n the present case . . . , there is no suggestion whatever that the respondent's ‘good name, reputation, honor, or integrity' is at stake." Id. at 573. See also Arnett v. Kennedy, 416 U.S. at 157 (opinion of REHNQUIST, J.) ("[L]iberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee. . . . [T]he purpose of the hearing in such a case is to provide the person ‘an opportunity to clear his name' . . ."). The fact that a stigma is imposed by the government in terminating the employment of a government employee may make the existence of state action unquestionable, but it surely does not detract from the fact that the operative "liberty" concept relates to the official stigmatization of the individual, whether imposed by the government in its status as an employer or otherwise.
16. Similar insensitivity is exhibited by the Court when it declares that respondent "has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded." Ante at 700. The gravamen of respondent's complaint is that he has been stigmatized as a criminal without any of the constitutional protections designed to prevent an erroneous determination of criminal culpability.
17. The import of these cases and the obvious impact of official stigmatization as a criminal were not lost on the Court of Appeals in this case:
This label ["active shoplifter"] carries with it the badge of disgrace of a criminal conviction. Moreover, it is a direct statement by law enforcement officials that the persons included in the flyer are presently pursuing an active course of criminal conduct. All of this was done without the slightest regard for due process. There was no notice nor opportunity to be heard prior to the distribution of the flyer, and appellant and others have never been accorded the opportunity to refute the charges in a criminal proceeding. It goes without saying that the Police Chiefs cannot determine the guilt or innocence of an accused in an administrative proceeding. Such a determination can be made only in a court of law.
The harm is all the more apparent because the branding has been done by law enforcement officials with the full power, prestige and authority of their positions. There can be little doubt that a person's standing and associations in the community have been damaged seriously when law enforcement officials brand him an active shoplifter, accuse him of a continuing course of criminal conduct, group him with criminals, and distribute his name and photograph to the merchants and businessmen of the community. Such acts are a direct and devastating attack on the good name, reputation, honor and integrity of the person involved. The fact of an arrest, without more, may impair or cloud a person's reputation. Michelson v. United States, 335 U.S. 469, 482 . . . (1948). Such acts on the part of law enforcement officials may result in direct economic loss and restricted opportunities for schooling, employment and professional licenses. Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486, 490 (1970).
505 F.2d 1180, 1183 (1974).
18. In light of my conviction that the State may not condemn an individual as a criminal without following the mandates of the trial process, I need not address the question whether there is an independent right of privacy which would yield the same result. Indeed, privacy notions appear to be inextricably interwoven with the considerations which require that a State not single an individual out for punishment outside the judicial process. Essentially, the core concept would be that a State cannot broadcast even such factual events as the occurrence of an arrest that does not culminate in a conviction when there are no legitimate law enforcement justifications for doing so, since the State is chargeable with the knowledge that many employers will treat an arrest the same as a conviction, and deny the individual employment or other opportunities on the basis of a fact that has no probative value with respect to actual criminal culpability. See, e.g., Michelson v. United States, 335 U.S. 469, 482 (1948); Schware v. Board of Bar Examiners, 353 U.S. at 241. A host of state and federal courts, relying on both privacy notions and the presumption of innocence, have begun to develop a line of cases holding that there are substantive limits on the power of the government to disseminate unresolved arrest records outside the law enforcement system, see, e.g., Utz v. Cullinane, 172 U.S.App.D.C. 67, 520 F.2d 467 (1975); Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 507 F.2d 1116 (1974); United States v. Dooley, 364 F.Supp. 75 (ED Pa.1973); Menard v. Mitchell, 328 F.Supp. 718, 725-726 (DC 1971), rev'd on other grounds, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974); United States v. Kalish, 271 F.Supp. 968 (PR 1967); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971). I fear that, after today's decision, these nascent doctrines will never have the opportunity for full growth and analysis. Since the Court of Appeals did not address respondent's privacy claims, and since there has not been substantial briefing or oral argument on that point, the Court's pronouncements are certainly unnecessary. Of course, States that are more sensitive than is this Court to the privacy and other interests of individuals erroneously caught up in the criminal justice system are certainly free to adopt or adhere to higher standards under state law. See, e.g., Michigan v. Mosley, 423 U.S. 96, 111, 120-121 (1975) (BRENNAN, J., dissenting).