Crawford-El v. Britton, 523 U.S. 574, 34 (1998)

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Cite as: 523 U. S. 574 (1998)

Rehnquist, C. J., dissenting

pick up boxes of the former's belongings for delivery to him, rather than shipping them directly to him in Florida. This act, considered by itself, would seem to be about as far from a violation of the First Amendment as can be conceived. But Crawford-El has alleged that Britton's decision to deliver his belongings to a relative was motivated by a desire to punish him for previous interviews with reporters that he had given, and lawsuits that he had filed. This claim of illicit motive, Crawford-El asserts, transforms a routine act in the course of prison administration into a constitutional tort.

The Court cites Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), as an example of this sort of tort. Ante, at 585, n. 9. But Pickering is but a distant cousin to the present case; there the school board plainly stated that its reason for discharging the plaintiff teacher was his writing of a letter to a newspaper criticizing the board. It was not motivation that was disputed, but whether the First Amendment protected the writing of the letter. Closer in point is Branti v. Finkel, 445 U. S. 507 (1980), also cited by the Court, but there the act complained of was the dismissal of Republican assistants by the newly appointed Democratic public defender. Objective evidence—the discharging of members of one party by the newly appointed supervisor of another party, and their replacement by members of the supervisor's party—would likely have served to defeat a claim of qualified immunity had the defendant official attempted to offer a legitimate reason for firing the Republican assistants. Thus, the defendants in neither Pickering nor Branti would have been entitled to qualified immunity under the approach that I propose.

Still more distantly related to the facts of the present case are what I would call primary First Amendment cases, where the constitutional claim does not depend on motive at all. Examples of these are Reno v. American Civil Liberties Union, 521 U. S. 844 (1997) (finding portions of the Communications Decency Act unconstitutional under the First

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