Amicus Brief: Thirty-One Years After CIR Won Rosenberger, One Federal Appeals Court Says It Warns No One

Richard Hershey handed out religious leaflets on a public sidewalk outside a city-owned arena as concertgoers arrived for a Christian rock show. Nearby, a commercial leafleteer was advertising a local radio station. Officers threatened Richard with arrest and ordered him off the grounds, leaving the other leafleteer alone. 

Punishing speech because it expresses a particular message has been textbook viewpoint discrimination for generations. What CIR’s 1995 victory in Rosenberger v. Rector & Visitors of the University of Virginia settled is that religious speech is no exception: Officials who single it out for worse treatment are discriminating, not staying neutral between church and state. Given that precedent, ejecting a religious leafleteer while leaving a commercial leafleteer alone is an obvious First Amendment violation. 

Richard sued under Section 1983, a Reconstruction-era civil rights statute that lets Americans recover damages from government officials who violate their constitutional rights. His damages claims were dismissed anyway. Not because any court found the officers acted lawfully. But because no court had ever ruled on a leafleteer removed from arena grounds,  the officers got a pass under a doctrine called qualified immunity. 

CIR joined an amicus brief, urging the Supreme Court to take Richard’s case to confirm that some violations are too obvious to excuse.

Why This Case Matters:

Every right must have a remedy. Congress wrote Section 1983 to make constitutional rights enforceable through damages. Although the phrase “qualified immunity” appears nowhere in Section 1983, under this doctrine, courts nonetheless shield government officials from paying damages unless a plaintiff can prove they violated “clearly established” law. In practice, many courts have turned that standard into a demand for a prior judicial decision involving nearly identical facts.  

As then-Judge Gorsuch observed, the most obviously unlawful conduct happens so rarely that a case on point is itself unusual. The perverse result: The most egregious violations are the most immune because no official has yet been brazen enough to commit them. In Judge Willett’s phrase, officials receive “unqualified impunity” so long as they are the first to behave badly in that manner. 

For most speakers, damages are the only remedy that means anything. An injunction cannot undo an arrest. In this case, it cannot give back the six years Richard has stayed away from a public place where he had every right to stand.  

The principle at risk is not confined to religious speech. Government officials who pay no price for viewpoint discrimination until a court condemns each new method of censorship can silence any disfavored speaker—an evangelist today, a journalist or a government critic tomorrow.  

Background:  The Supreme Court Already Answered This Question

In Hope v. Pelzer (2002), Alabama prison guards handcuffed an inmate to a hitching post for seven hours—shirtless in the sun, taunted, and denied water. Because no prior case had addressed this conduct, the guards argued that meant the law was not “clearly established.” 

The Supreme Court rejected that reasoning. A general constitutional rule can apply with “obvious clarity” to challenged conduct, giving officials “fair warning” that what they are doing is unlawful, even if no court has yet examined it. Some violations are simply too plain to require a nearly identical case. 

Hope and its 2020 successor, Taylor v. Riojas, both arose under the Eighth Amendment’s prohibition against cruel and unusual punishment. The Fifth Circuit has decided that their logic stops there. Nothing in Hope says so. Nothing in Section 1983 ranks one constitutional right above another—the statute protects “any rights, privileges, or immunities secured by the Constitution.” The effect of the Fifth Circuit’s interpretation is to treat the First Amendment as a second-class right. While a prisoner may invoke Hope’s obviousness principle, a citizen handing out religious pamphlets on a public sidewalk may not. No other circuit reads Hope that way.  

But other courts still struggle to apply Hope consistently, producing outcomes that turn less on what officials did than on which courthouse a speaker walks into. That confusion is itself a reason for the Supreme Court to step in.

CIR’s Interest in This Case:

The precedent the court below found too general to provide officials with notice is one CIR won. In Rosenberger v. Rector & Visitors of the University of Virginia (1995), CIR represented student editors of a Christian magazine that the University of Virginia refused to fund on the same terms it funded every other student publication. The Supreme Court held that the University had engaged in unconstitutional viewpoint discrimination. Courts have since cited Rosenberger over 1,600 times to date, including 58 times by the Supreme Court itself. It supplies the very rule the parties dispute in this case. 

One of the opinions below quoted Rosenberger, and then dismissed it, writing the principle it established “is a very general one” that “does not clearly establish what the First Amendment prohibits or requires of law enforcement officers.”  

CIR has a direct stake in the outcome. Constitutional rules secured over many years of litigation and at great cost mean little if the officials who break them never have to answer for it. 
 

CIR filed this amicus brief in partnership with attorneys at the Foundation for Individual Rights and Expression, the Goldwater Institute and the Rutherford Institute, whose exceptional work and commitment to defending constitutional principles made this brief possible.