608
Rehnquist, C. J., dissenting
Amendment); Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991) (concluding that Indiana statute regulating nude dancing did not violate First Amendment); Brown v. Hartlage, 456 U. S. 45 (1982) (invalidating Kentucky statute that limited the speech of candidates for office); Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976) (invalidating judge's order prohibiting reporting or commentary on murder trial); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975) (finding denial of permission to use municipal theater for showing of Hair to be unconstitutional prior restraint); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam) (refusing to enjoin publication of contents of classified study).
The great body of our cases involving freedom of speech would, therefore, be unaffected by this approach to qualified immunity. It would apply prototypically to a case such as the present one: A public official is charged with doing a routine act in the normal course of her duties—an act that by itself has absolutely no connection with freedom of speech—but she is charged with having performed that act out of a desire to retaliate against the plaintiff because of his previous exercise of his right to speak freely. In this case, there was surely a legitimate reason for respondent's action, and there is no evidence in the record before us that shows it to be pretextual. Under the Court's view, only a factfinder's ultimate determination of the motive with which she acted will resolve this case. I think the modest extension of Harlow which I propose should result in a judgment of qualified immunity for respondent.
Also relevant to a consideration of the costs my proposed rule would incur is that this suit is a request for damages brought under § 1983. If the purpose of § 1983 is to "deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails," it is hard to see how that purpose is substantially advanced if petition-
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