*1 LOUISVILLE, al. POLICE, et OF CHIEF PAUL, DAVIS 23, 1976 March 4, 1975 Decided November Argued 74-891. No. *2 Rehnquist, J., opinion delivered the Court, in which Burger, J., Stewart, C. and Blackmun, Powell, JJ., and joined. J., Brennan, filed dissenting opinion, in Marshall, J., which joined, in and J., joined which White, post, in part, p. 714. Ste- vens, J., part took no in the consideration decision of the case.
Carson P. Porter arguéd the for petitioners. cause With him on the brief was J. Bruce Miller.
Daniel T. III Taylor argued the cause for respondent. With him on the brief were Robert Allen Wil Sedler, liam H. Allison, Jr., Melvin L. John Wulf, H. F. Shat- tuck, Leon and Friedman.* Rehnquist Justice delivered the opinion of the
Mr. Court. granted
We
certiorari,
Petitioner Paul is the Chief of Police of the Louis- ville, Ky., Division of Police, while petitioner McDaniel occupies the position same in the Jefferson Ky., County, Division of Police. In they late 1972 agreed to combine their efforts for the purpose of alerting local area mer- possible chants to shoplifters who might be operating dur- * Frank G. Carrington, Fred E. Inbau, William K. Lambie, Wayne W. Schmidt filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal. early In
ing petitioners the Christmas season. December approximately distributed to merchants the Louis- metropolitan “flyer,” ville which follows: began area a as
“TO: MEN IN THE BUSINESS METROPOLI-
TAN AREA County City “The Chiefs The Jefferson Departments, Louisville Police an effort to officers keep activity, their advised on shoplifting approved have alphabetically arranged attached known flyer subjects to be active in this criminal field. flyer
“This being you, distributed to busi- *3 man, you may your security ness so that inform personnel subjects. to watch for per- these These sons have been arrested 1971 and 1972 or during have been active in various criminal in high fields density areas. shopping
“Only the photograph subject and name of the shown on this if additional flyer, information is please forward a request in desired, writing . . .” . flyer The consisted of pages five shot” “mug photos, . arranged alphabetically. Each page was headed: “NOVEMBER 1972 CITY OF LOUISVILLE JEFFERSON COUNTY POLICE DEPARTMENTS ACTIVE SHOPLIFTERS” In approximately the center of page appeared 2 there photos and the name of the respondent, Edward Charles Davis III.
Respondent appeared flyer on the because on June he had been arrested in Louisville on a charge shoplifting. He had been on arraigned this charge September upon 1971, and, plea his of not guilty, charge away had been “filed with leave [to reinstate]/' disposition which left charge outstanding. Thus, at the petitioners time flyer caused the prepared to be and circulated respondent had charged been with shop- lifting guilt but his or innocence of that offense had never been Shortly resolved. after flyer circulation of the charge against respondent was finally dismissed judge of the Louisville Police Court.
At flyer the time the was circulated respondent was employed as a photographer by the Louisville Courier- Journal and Times. The flyer, respondent’s inclusion therein, soon came to the attention respondent’s super- visor, the executive director of photography for the newspapers. two This respondent individual called in to hear his version of the events leading to his appearing flyer. Following this supervisor discussion, respondent informed that although he would not be fired, he “had best not find himself a similar situation” in the future.
Respondent thereupon brought this 1983 action in § the District Court for the Western District of Kentucky, seeking redress for alleged violation of rights guar- anteed to him by the Constitution of the United States. *4 Claiming jurisdiction under 28 U. C. (3), § 1343 re- spondent sought damages declaratory as well as and in- junctive relief. Petitioners moved to dismiss this com- plaint. The District Court granted this ruling motion, that facts alleged in this case do not “[t]he establish that plaintiff deprived has been of right secured to him by the Constitution of the United States.”
Respondent appealed to the Court of Appeals for the Sixth Circuit which recognized under our that, decisions, for respondent to establish a claim cognizable under 1983 § he had to petitioners show that deprived had
697 1of the United the Constitution secured right him of un- achieved was deprivation any such that and States, 398 U. S. Co., & Kress v. Adickes of law.2 color der that concluded Appeals of The Court (1970). 150 he that “in claim 1983 §a forth set had respondent process of due a denial constitute that facts alleged has our view In its (1974). 1182 2d 1180, 505 F. of law.” 433 U. S. 400 Constantineau, Wisconsin decision Court. District of reversal mandated (1971), I his upon grounded is claim process due Respondent’s phrase in particular and the flyer, that assertion page of head appearing Shoplifters” “Active imper- appear, photograph and his name upon which by the “liberty” protected some of missibly deprived him that asserted complaint His Amendment. Fourteenth him inhibit would designation shoplifter” the “active being fear for establishments entering business from and apprehended, possibly and shoplifting suspected opportuni- employment his future seriously impair would from may flow consequences such Accepting ties. ap- would complaint respondent’s flyer in question, actionable for defamation claim to state a classical pear crim- Imputing every virtually State. in the courts of considered generally is individual to an inal behavior proof se, without actionable defamatory per special damages. not in however, action, his brought
Respondent District States but in a United of Kentucky, courts state implicated is not of 42 U. S. C. provision The laws” § “and in this case. part their actions petitioners’ were disputed It is cause of action of a this element § conduct official satisfied here.
Court for that State. He asserted not for a claim defa- mation under the laws but Kentucky, of a claim that he deprived had been of rights by secured to him the Four- teenth Amendment of the United States Constitution. Concededly if the allegations same had been made about respondent by private a individual, he would have noth- ing more than a claim for defamation under state law. But, he contends, petitioners since are respectively an city official of county government, his is action thereby transmuted into one for deprivation by the of rights State secured under the Fourteenth Amendment. In v, Greenwood Peacock, 384 S. 808 U. in the (1966), course important considering an and not wholly dis- similar question of the relationship between the National and the State Governments, Court said that is “[i]t worth contemplating what result would be if the interpretation strained (1) § 1443 urged the individ- petitioners ual were to prevail.” Id., 832. We, too, pause to consider the result should respondent’s interpre- tation of § 1983 and of the Fourteenth Amendment be accepted.
If respondent’s view is to prevail, person a arrested by law enforcement officers who they announce that be- lieve such person to be responsible for particular a crime in order to calm the fears an aroused populace, pre- sumably obtains a against claim such officers under § 1983. And since it is surely far more clear from the language of the Fourteenth Amendment that “life” is protected against state deprivation it than repu- tation is protected against state injury, it would be diffi- cult to why see the survivors of an bystander innocent mistakenly shot policeman or negligently killed by a sheriff driving government would vehicle, not have claims equally cognizable under § 1983.
It is hard perceive any logical stopping place to such
a line of reasoning. Respondent’s construction would seem necessarily almost to result in every legally cogniza- injury ble which may have been inflicted by a state official acting under “color of law” a viola- establishing tion of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted shep- herded the adoption of that Amendment to learn that it worked such result, and a study of our con- decisions vinces us they do support the construction urged by respondent.
II The result by reached the Court of Appeals, which respondent seeks to sustain here, must be bottomed on premises. one two The first is that the Due Process Clause of the Fourteenth Amendment and § 1983 make many actionable wrongs by inflicted government em- ployees which had been thought heretofore to give rise only to state-law tort claims. The second premise is infliction by state officials of “stigma” to one’s reputation is somehow different kind from the inflic- tion the same official of or injury harm to other inter- ests protected by law, state so that an injury to reputa- tion is actionable under § 1983 and the Fourteenth Amendment even if other such harms are not. We ex- amine each of these premises in turn.
A
The first premise would be contrary to pronouncements
occasion,
in our cases on more than one
with respect to
scope
of § 1983 and of the Fourteenth Amendment.
In the leading case of Screws v. United States, 325 U. 91 (1945), the Court considered the proper application
of the criminal counterpart
§of 1983, likewise intended
by Congress to enforce
guarantees
of the Fourteenth
opinion
plurality
In
for the Court
Amendment.
his
Douglas
Mr. Justice
observed:
case,
necessarily
“Violation of local law does not
mean
rights
federal
have been
The fact
invaded.
prisoner
assaulted,
that a
mur-
injured, or even
,not
dered
state officials does
necessarily mean
deprived
protected
that he is
right
secured
*7
by the Constitution or laws of the United States.”
After recognizing Congress’ power to make crim- inal the conduct of officials state under the of the aegis Fourteenth Amendment was unlimited because that Amendment “did not alter the basic relations between the States and the government,” national plurality opin- ion observed Congress should not be understood to have attempted
“to make all torts of state officials federal crimes. It brought within provision] criminal only [the specified acts done ‘under color’ of only law and then those acts deprived which person right some by secured the Constitution or laws of the United Id., States.” at 109.
This understanding the limited effect of the Four- teenth Amendment was not lost in the Court’s decision in Monroe v. Pape, 365 U. (1961). There the Court was point careful to out complaint that the stated a cause of action under the Fourteenth Amendment because it alleged an unreasonable search and seizure violative of guarantee “contained in the Fourth Amendment applicable made [and] States reason of the Due Process Clause of the Fourteenth Amendment.” 171. Id., at Respondent, has however, pointed specific to no constitutional guarantee safe- guarding the interest he asserts has been invaded. he
Rather, apparently believes that the Fourteenth Amendment’s Due Process Clause should ex proprio vigore extend to him a right to be free of injury wher ever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the “constitutional shoals” that confront attempt from derive congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U. S. 101-102 (1071); fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law.
B
The second premise upon which the result reached
by the Court of Appeals could be rested —that the inflic-
tion by state officials of a “stigma” to
reputation
one’s
is somehow different in kind from
infliction
a state
official
*8
harm to other interests protected by state
law—is equally untenable.
The words “liberty” and
“property” as used in the Fourteenth Amendment do
not in terms single out reputation as a candidate for
special protection over and above other interests that
may
protected
be
by state law. While we have in a
number of our prior
pointed
cases
out the frequently
drastic
effect
the “stigma” which may result from def-
amation by the government
in a variety of contexts,
this line of cases does not establish the proposition
reputation
apart
alone,
from some more tangible
interests
such as
is
employment,
either “liberty” or
“property” by itself sufficient to invoke
procedural
protection of the Due Process Clause. As we have said,
the Court of
Appeals,
reaching a contrary conclusion,
primarily
relied
upon Wisconsin v. Constantineau, 400
U.
(1971). We think the correct import of that
decision,
must
however,
be derived from an examination
precedents
of the
upon which it relied, as well as con-
sideration of the other decisions by this
before
Court,
and after Constantineau, which bear upon the relation-
ship between governmental defamation and the guar-
antees
the Constitution. While not uniform in their
treatment of the
we
subject,
think that
the weight of
our decisions establishes no constitutional doctrine con-
verting every
by
defamation
public
official into a
deprivation of liberty within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.
In United
Lovett,
States v.
Subsequently, Joint Anti-Fascist Refugee Comm. 3 If respondent correct his. contention that defamation a state official is actionable under the Fourteenth Amendment, it would of course follow that defamation a federal official should likewise be actionable under cognate Due Process Clause of the *9 Fifth Amendment. Surely the Fourteenth Amendment imposes no more stringent- requirements upon state officials than does the Fifth upon their federal counterparts. We thus consider this Court’s decisions interpreting either Clause as relevant to our examination of respondent’s claim. McGrath, (1951), the Court examined validity Attorney designation of the General’s organizations
certain “Communist” on list which he as furnished to the Civil Service Commission. There was ; majority opinion no in the Mr. who Burton, case Justice judgment announced the Court, opinion of the wrote an which did not petitioners’ reach constitutional claim. Mr. Justice who Frankfurter, agreed with Mr. Justice Burton petitioners had upon stated a claim which relief could granted, be noted “publicly desig- nating organization an as within proscribed categories Loyalty of the directly deprive anyone Order does not liberty Id., or property.” Douglas, at 164. Mr. Justice who likewise petitioners concluded that had stated a claim, observed in his separate opinion:
“This is not an calling by public instance name officials. This is a determination of pro- status —a ceeding to organization ascertain whether the is or is not ‘subversive.’ This determination has conse- quences that are serious organiza- to the condemned tions. consequences Those in part, flow of course, public from opinion. they But also flow from ac- tions regulatory agencies moving that are in the Attorney wake of the General’s determination to penalize police or organizations.” these Id., 175. Mr. Justice Jackson, who likewise agreed peti- tioners had stated a commented: claim,
“I agree designation that mere as deprives subversive organizations themselves of legal right no immunity. By they it subjected are not dissolved, any legal prosecution, punished, penalized, or prohibited carrying from on of their activities. injury they Their claim of is that cannot attract audiences, members, enlist or obtain contributions *10 readily as as before. These, however, are sanctions applied by public by Id., not disapproval, law.” at 183-184. say:
He went on to target procedure real all this “[T]he gov- ernment employee who is a of, sympa- member to, thetic one or more accused organizations. He not only may be discharged, but disqualified from em- ployment, upon no other ground than such member- ship or sympathetic ... To deprived affiliation. be only not present government employment but of future opportunity for it certainly is no injury small government when employment so dominates the field of opportunity.” Id., at 184H85.
Mr. Justice for writing Reed, himself, The Chief Jus- tice, and Mr. Justice would have peti- held that Minton, tioners failed to state a for claim In relief. his dissent- ing opinion, after having petitioners’ stated claim that their listing resulted in deprivation of liberty or prop- erty contrary procedure to the required by the Fifth he said: Amendment,
“The contention be can answered summarily by saying that there is no deprivation of any property or liberty any organization listed Attorney General’s designation. may It be assumed that the listing is hurtful to their prestige, reputation and earning power. may It be such an injury as would entitle organizations to damages in a tort action against persons protected not by privilege. . .. This designation, however, does prohibit any business of the organizations, subject them any punish- ment or deprive them of liberty of speech or other Id., freedom.” at 202.
Thus at least six of eight Justices who participated
in that case viewed “stigma” imposed official action of the Attorney General of the States, United *11 divorced from its effect on the legal status of an organiza- tion or a person, such as loss of exemption tax of loss government employment, as an insufficient basis for in- voking the Due Process Clause of the Fifth Amendment.
In Wieman v. Updegraff,
“Finally,
be noted that
this is not a case
where government action
operated
has
to bestow a
badge
disloyalty or
with
infamy,
an attendant
other employment
foreclosure from
opportunity. See
Wieman v. Updegraf, 344 U. S. 183, 190-191; Joint
Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 140-
”,
141 . .
Id., at 898.
(Emphasis supplied.)
Two things appear from the line of cases beginning
with Lovett. The Court has recognized the serious
damage that could be
inflicted
branding a govern-
ment employee as “disloyal," and thereby stigmatizing
his good name. But the Court has never held that
mere defamation of an individual, whether by brand-
ing him disloyal or otherwise, was sufficient to invoke
the guarantees
procedural
process
due
absent an ac-
companying loss of government employment.4
4 We
agree
cannot
with the suggestion of our Brother BreNNAN,
*12
dissenting, -post,
the actions of these
petitioner
two
law enforcement officers come within the language
by
used
Mr.
Justice Harlan in his dissenting opinion in
McKeithen,
Jenkins v.
395
U. S.
(1969).
433
They
are not
any conceivable stretch
of the imagination, either separately or together, "an agency whose
sole or predominant
function, without serving any
public
other
interest,
expose
is to
publicize
persons
names of
it finds
guilty of wrongdoing.”
Id., at 438.
Indeed,
the actions taken
by these petitioners in this case fall far short of the more formalized
proceedings' of the Commission on
Rights
Civil
established
Con
gress in 1957,
procedures
of which were upheld against constitu
tional challenge by this Court
in Hannah v. Larche,
at 441 (emphasis supplied).
Addressing itself question to the of whether the Commission’s
It is noteworthy that in Barr v. Matteo, U. S. Lyons, Howard (1959), this (1959), Court had it before two actions for brought defamation against federal officers. But opinion neither there any any intimation that parties to or those cases, the Members of this had Court, the remotest idea the Due Process Clause of the Fifth Amendment might itself form the for basis a claim for defamation against federal officials.
It was against this backdrop that the Court in 1971 decided Constantineau. There the Court held that a Wisconsin statute practice authorizing the of “posting” was únconstitutional because it provide to proce- failed dural safeguards of notice and an opportunity to be prior to an heard, individual’s “posted.” being Under the statute “posting” consisted of forbidding writing sale delivery of alcoholic beverages to per- certain sons who were determined have become hazards themselves, to their or to family, the community by reason of their “excessive drinking.” The statute also made it a misdemeanor to sell or give liquor to any per- son posted. so See 400 U. at S., 434 n. 2.
There is undoubtedly language Constantineau, which is sufficiently ambiguous to justify the reliance upon byit the Court of Appeals:
“Yet certainly where the state attaches ‘a badge of *13 infamy’ to the process due citizen, comes into play. “proceedings might irreparably harm being those investigated subjecting public them to scorn, opprobrium and the distinct likeli- hood of losing jobs, their possibility and the prosecu- criminal itons,” the said Court that “even if such consequences collateral were to flow from the Commission’s they investigations, would not be the result of affirmative determinations made the Com- mission, they would not legitimacy affect the of the Commis- Id., investigative sion’s function.” at 443. Wieman Updegraff, v. 344 U. S. 183, 191. ‘[T]he right to be heard before being condemned to suffer grievous kind, loss of any even though may it involve the stigma and hardships aof criminal con viction, is a principle basic to our society.’ Anti- Fascist Committee v. McGrath, S.U. (Frankfurter, J., concurring).
“Where a person’s good name, reputation, honor, or integrity is at stake because what the govern- ment is doing him, notice and an opportunity to be heard are essential.” Id., at (emphasis supplied).
The last paragraph of
quotation
the
could be taken
to mean that
if a government official defames a person,
without more,
procedural
requirements of the Due
Process Clause of
the Fourteenth Amendment
are
brought
play.
into
If read that way, it would represent
a significant broadening of the holdings of Wieman v.
Updegraff,
We think that the italicized language in the last sentence quoted, “because of what government doing to him,” referred to fact governmental action taken in that deprived case individual right previously held under state right law—the pur- chase or obtain liquor in common with the rest of the citizenry. “Posting,” therefore, significantly altered her status as a matter of state law, it and was that alteration of legal status which, combined with the injury resulting *14 pro- the invocation defamation, justified
from the the resulting from “stigma” safeguards. The cedural an doubtless posting was defamatory character of worked harm evaluating the extent of important factor in defamation, think that such by act, but we do not any Constantineau standing alone, deprived of the Fourteenth by procedural guarantees protected Amendment. by discussion of
This conclusion is reinforced our year Regents in Board subject a little over a later “the Roth, noted that (1972). There we is by process due range protected procedural of interests property id., respect with to infinite,” at and that they interests are by the Constitution. course,
“of . . not created . de- they their dimensions are Rather, are created and stem understandings that existing fined rules or state law— independent from source such as an benefits understandings that secure certain rules or those to support and that claims of entitlement Id., benefits.” 577. defam- governmental action recognized
While Roth him ing declining an in to rehire individual the course to person opportunity could entitle to notice and an in- quite defamation, language be heard as to the its perpetrated any consistent with notion that a defamation with but unconnected government official Four- under the refusal to rehire would be actionable teenth Amendment: declining respondent, rehire the state,
“The any charge against might him that seri- did not make his ously standing his and associations damage community. . . . State, suggestion there is no
“Similarly, declining re-employ respondent, imposed on *15 him a stigma or disability other that foreclosed his freedom to take advantage of other employment opportunities.” Id., (emphasis at 573 supplied).
Thus was thought it not sufficient to establish a claim under § 1983 and the Fourteenth Amendment there simply be by defamation official; state the defamation had occur in the course of the termination employ- ment. Certainly there is no suggestion in Roth to indi- cate that a hearing would required be each time State in its capacity as employer might be considered re- sponsible for a statement defaming an employee who continues to be an employee.
This conclusion
quite
is
consistent with our most recent
holding in this area,
Lopez,
Goss v.
Ill It apparent from our decisions that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either “property” as meant in the Due Process Clause. These interests attain this constitu- tional by status virtue of the fact that they have been initially recognized protected by law,5 state and we interests, There are other course, protected virtue of recognition by their law particular of a State they but because guaranteed are provisions one of the Bill of Rights which repeatedly
have ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to significantly remove or alter protected status. In Burson, Bell v. (1971), U. S. 535 for ex- ample, the State issuing drivers’ recognized licenses in its citizens a right to operate a highways vehicle on the of the State. The Court held that the State could not right withdraw this without giving petitioner due process. In Morrissey Brewer, S. 471 (1972), U. the State *16 afforded parolees right the to remain liberty long as as the conditions of their parole were violated. Before the could State alter parolee the of status because of alleged violations of conditions, these we held that Fourteenth Amendment’s guarantee of process of due law required procedural certain safeguards.
In each of these as cases, a result of the state action complained of, a or right status previously recognized by state law was altered distinctly or It extinguished. was this officially alteration, removing the interest from the recognition and protection previously by afforded State, which we found sufficient to invoke procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment. But the reputation interest in alone which respondent seeks to vindicate in this action in federal court is quite different from “liberty” or “property” recognized in those decisions. Kentucky law does not extend to respondent any legal guarantee pres- of enjoyment ent reputation of which has been altered as a “incorporated” has been into the Fourteenth Amendment. Section deprivation makes a rights of such actionable independently of Pape, state law. See Monroe (1961). U. S. 167 Our discussion in Part III is limited to consideration of the procedural guarantees of Due Process Clause is not intended to describe those substantive upon limitations state action which may encompassed be concept within the “liberty” of expressed in the Fourteenth IV, Amendment. Cf. Part infra. petitioners’ result of actions. rep- Rather his interest in utation is simply may one a number which the State protect against injury by virtue of its tort law, providing a forum for vindication of by those interests means of damages actions. any injury And or harm in- terest, even where as here inflicted an officer of the State, does not result in deprivation any "liberty” or “property” recognized by state or law, federal nor it any has worked change of respondent’s status as there- tofore recognized under the State’s laws. For these rea- sons we hold that the interest in reputation asserted in this case is neither “liberty” nor “property” guaranteed against state deprivation process without due of law.
Respondent in this case cannot assert denial right vouchsafed to him thereby the State pro- tected under the Fourteenth Amendment. being That petitioners’ case, defamatory publications, however seriously they may have respondent’s harmed reputation, did not deprive him any “property” in- terests protected by the Due Process Clause.
IV *17 Respondent’s complaint alleged also a violation of a “right to privacy guaranteed by First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” The Court of Appeals did not pass upon this claim since it found the allegations of a process due violation sufficient to require reversal of the District Court’s order. As we agreed have with the District Court on the process due issue, we find it necessary pass to upon respondent’s theory other order to determine whether any is support there for the litigation he pursue. seeks to
While there is no “right of privacy” found in specific guarantee of the Constitution, the Court has recognized that “zones of privacy” may be created
more specific guarantees constitutional thereby im- pose limits upon government power. Wade, Roe See 113, (1973). S. 152-153 Respondent’s case, how- ever, within comes none of these areas. He does not seek to suppress evidence seized in the course of an unreason- able States, search. Katz See v. United 389 U. S. Ohio, (1967); Terry v. (1968). U. 8-9 1,S. And our other “right privacy” cases, defying while categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out personal rights found this guarantee of personal privacy must be limited to those which are “fundamental” “implicit in the concept liberty” ordered as described in Palko v. Connecti- cut, 302 U. (1937). The activities detailed being as within this very definition were ones different from for which respondent claims constitutional protection relating to marriage, procreation, —matters family contraception, relationships, and child rearing and education. In these areas it has been held that there are limitations on power substantively the States’ regulate conduct.
Respondent’s claim is far afield from this line of de- cisions. He claims protection against constitutional disclosure of the fact of his arrest on a shoplifting charge. His claim not based, upon any challenge the State’s ability to restrict his freedom sphere of action in a con- “private,” tended to be but instead on a claim that may publicize State record of an official such act as an arrest. None of our privacy substantive decisions anything hold this or this, like enlarge we decline to them in this manner. of respondent’s
None theories recovery were based *18 upon rights secured him the Fourteenth Amend- ment. Petitioners therefore were not liable to him under § 1983. The judgment of the Court of Appeals holding otherwise is Reversed.
Mr. Justice Stevens took no part in the consideration or decision of this case.
Mr. Justice Brennan, with whom Mr. Justice Mar- shall 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 debili- tating labels in our society. If there are no constitu- tional restraints on such oppressive behavior, the safe- guards 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 parte ex punishment by those primarily charged with fair enforcement of the law. The Court accom- plishes this result by excluding a person's interest in his good name and reputation from all constitutional protec- tion, regardless of the character of or necessity for the government’s actions. The result, which is demonstra- bly 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 neces sary 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, causes to be subjected, any citizen of the United States or other person within
715 jurisdiction thereof to the deprivation rights, or immunities by privileges, secured the Con- stitution and shall be laws, to in- party liable jured in an action at suit in equity, or other law, proper proceeding for redress.” Thus, as ante, Court indicates, at 696-697, respond ent’s complaint, to cognizable be 1983, under must § al lege deprivation both a of a right1 constitutional and the effectuation of deprivation color of law. under e. See, g., Adickes v. Kress & Co., 398 144, U. S. (1970). But the implication, ante, see 697-699, the existence vel non of remedy a state example, —for cause of action for defamation —is to relevant the deter mination whether there is a cause action under 1983, § is wholly unfounded. “It is no answer that the State has a which law if would give enforced relief. The remedy federal 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, S.U. (1961). See also, g., e. McNeese Board Education, 373 U. S. 671-672 (1963). even Indeed, if the Court were creating a novel doctrine that law state is in any way it would be upon relevant, incumbent Court inquire whether respondent has an adequate remedy under Kentucky law or petitioners whether would be by immunized state doctrines of official or sovereign immunity. The Court, however, undertakes no such inquiry.
Equally irrelevant is the Court’s statement that “[c]on- cededly if the same allegations had been made about respondent by private individual, he would have noth- ing more than a claim for defamation under state law.” Ante, at 698. The action complained of here is “state 1Deprivations of rights by secured “laws” as well as Constitution are actionable under 1983. Only an alleged § consti tutional violation is Ante, involved in this case. at 697 n. 1. Fourteenth Amend allegedly action” violation only designed which is and that ment, Amendment, clearly prohibit renders unconstitutional “state” action, merely actions that would be taken state officials *20 by if in in acting criminal or tortious those their engaged private capacities. private if citizen enters Of a course, the home of manacles and threatens the another, owner, and searches the house in the course of a he robbery, civilly be criminally law, would liable under state impli but no constitutional of the would rights owner be if However, police cated. state in engage officials the same acts in of the course a narcotics the investigation, may owner damages against police maintain a action deprivation under 1983 for rights § of constitutional “under color of” law. Cf. Bivens v. Six Un state known Agents, Federal Narcotics 403 U. S. 390- 392 (1971). g., See Pape, supra. e. Monroe v. also, In it short, is difficult to believe that the Court seri ously ante, suggests, 697-698, see at there is some anomaly in distinction, for purposes, constitutional between tortious by conduct private committed citizen and the same by conduct committed state officials under color of state law.
It may be I I misunderstand the thrust of Part of the opinion. Court’s Perhaps the Court is ques- not tioning the “liberty” involvement of a constitutional “property” interest case, this but rather whether the deprivation of those interests accomplished was “under color of” state expressed law. Court’s .The concern that but today’s decision, for negligent by tortious behavior state might officials ante, constitute a 1983 violation, § see 698, suggests this reading.2 But that concern is
2 Indeed, it interpret would be difficult to any that discussion as thing but a requirement discussion of the “under color of” law of 1983, which is not involved in this case and which has no § relation question ship to the whether a or “property” interest is of” “under color are not An official’sactions
groundless. off-duty official; police- an is an merely because he law example, would children, for his own discipline man’s of The essen- of” law. “under color not constitute conduct his is abuse of of 1983 action type § of this tial element 1983], meant enacting position. “Congress, [§ official constitutional remedy parties deprived give official’s abuse immunities an rights, privileges and (empha- Pape, supra, at position.” his Monroe v. “[mjisuse of on 1983 focuses supplied). sis Section possible made state law and possessed virtue of power, authority clothed with only wrongdoer because Classic, 313 U. S. state law.” United States whether or Moreover, (1941) supplied). (emphasis duty course of negligent mere official conduct officials police power, can such ever constitute abuse was *21 intentional and conduct was here concede that their beyond Therefore, capacities. undertaken in their official of law, under color see it is taken action peradventure, ante, for the Court disingenuous it is 697, 2, at and n. and ante, seeking is respondent see argue, 700-701, to at The of tort law. generalized to convert 1983 into a font § pe- whether only by this case is properly presented issue any respond- infringed of titioners’ intentional conduct process “liberty” or interests without due “property” ent’s I am law, question is to be addressed. of and that Court, despite way in simply no which involved here. There is de- today’s “property,” could the terms treatment of cognizable is not an interest person’s of life clare the loss ante, See the Due Process Clause. portion within the “life” 698-699. remedy official course, when an providing to Of addition remedy when a designed provide a position, 1983 is abuses his § remedy rights, abridges when a itself constitutional state statute inadequate rights, protect constitutional is under state law adequate theory, is unavailable remedy, though a state when Pape, (1961). g., See, 173-174 e. Monroe 365 U. S. practice. persuaded that respondent alleged has a case of such infringement, and therefore of a violation 1983. §
The stark fact is that the police here have officially imposed on respondent the stigmatizing label “criminar’ without the salutary and constitutionally mandated safe guards of a criminal trial. The Court concedes that this action will have deleterious consequences respondent. for For 15 years, police had prepared and circulated sim ilar lists, not with respect to shoplifting alone, but also for other offenses. App. 27-28. Included in the five-page list in which respondent’s name and shot” “mug appeared were numerous individuals who, like respond ent, were never convicted any criminal activity and whose only “offense” was having once been arrested.4
4 Petitioners testified: “Q. you And didn’t persons limit this to who had been convicted of the offense of shoplifting, is that correct?
“A. That’s correct. "Q. Now, my question is what is the your basis for conclusion person that a person who has —a been arrested for the offense of shoplifting is an shoplifter? active “A. The very fact that he’s been arrested for the charge shop- lifting and presented evidence to that effect. “Q. And this is not based on finding of the court? No, “A. App. sir.” 26. “Q. right. All So my if understanding correct, this in- cluded persons all who were arrested in ’71 and ’72?
“A. That’s true. “Q. And persons selected *22 from —who were previous arrested in years? “A. I ... assume from the persons number of many here that of these have been many arrested years back down the line consecutively .... “Q. So there’s no distinction made persons between whose arrest terminated in convictions and persons whose arrest did not terminate in convictions? No, Id.,
“A. sir.” at 29.
Indeed, respondent was over 17 before arrested months flyer distributed,5 the was not state law enforcement private security but a store’s and police, authorities, in nothing appears the record to suggest the existence constitutionally at that probable time even sufficient for single charge.6 cause shoplifting arrest on a Nevertheless, petitioners (800 1,000 flyers printed had widely throughout were distributed the Louisville busi ness community) the proclaiming that individuals identi
5Respondent 14, pleaded was on arrested June 1971. He not guilty charge and the away was “filed with on leave [to reinstate]” September 22, flyer 1971. The distribution of the was Decem on 5, ber shoplifting charge 1972. The was dismissed on December respondent complaint following day. and filed his He sought compensatory injunction punitive damages, pro and an and hibiting flyers similar dissemination of such in the future order ing petitioners flyers to obtain the return of the and to instruct respondent those who pictured received them that and the others in flyers shoplifters,” were not “active and had not been convicted shoplifting any only Respondent’s similar other offense. ar years place previously speeding rest took five for a offense. Court, by totally excluding person’s reputa The in interest his any cognizance Clause, tion from under the Due Process would be forced to reach the same conclusion that there is no cause of action injunctive petitioners under 1983—even to obtain relief —if had § randomly directory telephone selected names from the Louisville for flyer. course, shoplifters” per inclusion in the “active Of even if a constitutionally basis,.that son has been arrested on a sufficient does justify treating him the State’s as a criminal. very little, any, “The mere fact that a man has been arrested has if probative showing engaged value that he has misconduct. An nothing probably suspected arrest shows more than someone person apprehended charges of an are offense. When formal trial, against person not filed arrested he released without probative may normally dissi whatever force arrest have had is pated.” Examiners, 232, 241 (1957). Schware v. Board Bar 353 U. S. innocence, requirement presumption The constitutional beyond proof conviction for a crime must be on based reasonable doubt, obviously safeguards and the of a criminal trial are other designed give meaning to this part at least concrete fact. *23 720
fied name and picture “subjects were known to be active in this criminal field [shoplifting],” trumpet ing the “fact” each page depicted “Active Shoplifters” (emphasis supplied).7
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., 174-175 (1965); Conley cf. Gibson, U. 41S. (1957), that dissemination of this flyer would “seriously impair [respondent’s] employment future op portunities” and “inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly ante, apprehended,” at the Court char acterizes the allegation as “mere defamation” involving no infringement of constitutionally protected interests. g., E. ante, at 706. This is because, the holds, Court neither a nor “property” interest was invaded 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, pause [should] consider the result should [the interpretation Court’s] of § 1983 and of the Fourteenth Amendment be accepted.” Ante, at 698. There is no at- tempt by the Court to analyze the question as one of reconciliation of constitutionally protected personal rights and the exigencies of law enforcement. No effort made to distinguish the “defamation” that occurs when grand jury indicts an accused from the “defamation” that occurs when executive officials arbitrarily and with- point At one flyer, in the there was also an indication that persons “[t]hese have been during arrested 1971 and 1972 have been active various criminal high fields in density shopping areas.” purpose The stated flyer of the was you, “so that the busi may nessman . your . inform . personnel security to watch these for subjects.” Ante, (emphasis supplied). *24 8
out person declare a an “active Rather, trial criminal.” by the Court mere fiat with no analysis wholly and ex cludes personal interest reputation from the ambit of “life, liberty, property” or under the Fifth and Four teenth Amendments, thus rendering process con due applicable cerns never to the official stigmatization, however of arbitrary, an individual. and logical dis The turbing corollary of this holding is that no due process infirmities would inhere in a statute constituting com a mission to ex parte conduct trials of individuals, long so only as the judgment official pronounced was limited to public condemnation and branding person of a as a Communist, a traitor, an “active murderer,” a homosex ual, or other mark “merely” carries social opprobrium. potential The of today’s is fright decision ening for a free people.9 That decision surely finds no support our relevant constitutional jurisprudence. 8Indeed, the opinion Court’s separate questions confuses the two of reputation is a “property” whether or interest and whether, in particular context, a state respect action with to that interest is a process. g., ante, violation of due 698-699, E. 701- 702, n. (assuming and 3 reputation that if liberty is a cognizable or property interest, every by public defamation official would be an against offense the Due Clause Process of the Fifth Fourteenth Amendment). 9Today’s holding places arbitrary power vast and in the hands of federal and state officials. It is not difficult to conceive of a police department, perceives with dissatisfied what it to be the dilatory efficacy judicial nature or lack system of of the dealing defendants, with publishing criminal periodic rapists,” lists “active of larcenists,” “active or other “known hardships criminals.” The re sulting stigmatization from this official employment of and —loss opportunities, impediments educational creation of professional imposition general and the licensing, right obstacles to the of all pursuit free men to the of happiness often be as severe as —will incarceration, today actual Court invites condones such punishment lawless those who wish to action inflict without com pliance procedural safeguards with the constitutionally required of justice system. the criminal
“In a Constitution for a
people,
free
there can be no
doubt that
the meaning
'liberty’
must be broad indeed.
g.,
e.
See,
Bolling v. Sharpe, 347 U.
497,
S.
499-500;
Stanley v. Illinois,
one’s name and most cherished among peatedly being in our cases as therefore as fall- enjoyed by of free and rights people, concept personal “liberty.” within of ing us, the has reminded Justice Stewart “[A]s Mr. his own protection good individual’s to right name “ concept 'reflects no more than our basic of the essential worth of dignity every being— human a concept any system at the root of decent of ordered liberty. protection private like personality, The protection of life left to the itself, primarily is individual Amend- States under the Ninth and Tenth ments. But this right does not mean that entitled to recognition less this Court as a Rosenblatt v. basic of our system.’ constitutional Baer, (1966) opinion).” U. (concurring 75, Welch, Gertz v. Inc., Robert 418 U. S. (1974).11 acquire knowledge, marry, useful bring up to establish a home and children, worship according God to the dictates of his con own
science, generally enjoy privileges long recognized . . . those Meyer as orderly essential pursuit happiness by to the free men.’ Nebraska, Regents Roth, supra, v. 399.” Board 262 U. S. *26 at 572. g., Kennedy, also, e. Arnett v. (1974) See 134, 157 (opinion 416 U. S. Rehnquist, J.). of It should thus be clear that much of the con tent “liberty” of particular provisions has no tie whatsoever to of the Bill Rights, today gives explanation of for its and the Court no narrowing of that content. 11 strange It is that the Court should hold that the interest good concept one’s reputation name and is not within the embraced of Amendment, “property” or under the Fourteenth yet law, interest, recognized hold same that that when under state is sufficient specific protections to overcome the of the First Amend g., Welch, Inc.; Time, See, e. Gertz v. Robert v. Fire ment. Inc. stone, ante, p. 448. 724 consistently held
We have reputation, good name, person’s a “‘[w]here of at stake because honor, integrity is notice doing him, is government what essential.’ be heard are opportunity an Constantineau, 437. 433, 400 U. S. v. Wisconsin Joint Anti- 191; U. 183, 344 S. Updegraff, Wieman v. McGrath, 341 U. S. Refugee Committee v. Fascist Lovett, 316-317; 303, States v. S. 123; United J., Hobby, 331, 349 U. S. (Douglas, Peters v. McElroy, Workers v. concurring). See Cafeteria Roth, Regents v. Board 886, 367 U. S. 898.” of 573. supra, at 474, McElroy, 360 U. S. g., Greene v. e. also,
See McElroy, U. S. (1959); Workers v. Cafeteria Goss dissenting); (1961) J., 899-902 886, (Brennan, (1975). In the Lopez, 419 U. S. 574-575 is concrete justice given this interest criminal system, innocence and presumption of protection through state-imposed punishment unless prohibition beyond can demonstrate a reasonable State doubt, safe- with constitutional public a trial the attendant engaged pro- particular that a individual has guards, certainty scribed criminal conduct. “[B]ecause would be guilty found of criminal behavior] [one society stigmatized the conviction a that values ... every name individual should good and freedom for of crime when there not condemn a man commission Winship, his In re guilt.” doubt about reasonable (1970). “It is important U. 363-364 also our society every ordinary his going individual about free government confidence that his cannot ad- affairs have judge guilty convincing him criminal offense without
725 certainty.” with utmost guilt his proper factfinder of a Id., at 364.12 Jenkins from a clear retreat
Today’s marks decision to closely akin (1969), a case McKeithen, 395 U. S. case, essentially yet and pattern of the instant the factual Jenkins, action which was also an ignored the Court. 1983, that recognized both brought § under cog- interests implicates individual public branding of an held “property,” or nizable as either with- accomplished cannot be public such condemnation arbitrary designed eliminate procedural safeguards out Jenkins involved executive action. capricious constitutionality Labor-Management of the Louisiana “very whose agency executive Inquiry, an Commission criminal violating persons guilty is to find purpose ... publi- and to procedural safeguards, without trial or laws 424. U. at findings.” S., cize those alleged consequences economic personal and “[T]he to meet to flow from actions are sufficient such (cid:127) redress- appellant prove legally a requirement certainly consequences would injury. able Those party and thus private if caused be actionable standing. appellant to accord should be sufficient 493, n. 22 McElroy, 360 U. Greene v. See par insensitivity dictates is to these constitutional The Court’s respondent because had never ticularly evident when it declares that [shop of that offense brought trial, guilt “his or innocence been Ante, It hard to con lifting] been resolved.” at 696. had never innocence, devastating flouting presumption of the of a ceive more ‘enforce elementary’ principle whose “that bedrock ‘axiomatic criminal of our foundation of the administration ment- lies at ” v. United Winship, In re S., 363, quoting law.’ Coffin States, Moreover, person (1895). if a was 156 U. S. even “actively crime, does not mean that he is convicted once activity now. engaged” in that *28 726
(1959); Refugee Joint Anti-Fascist Committee v. McGrath, supra, 140-141 (opinion J.); of Burton, id., at 151-160 (Frankfurter, J., concurring). It is no answer that the Commission has not itself tried to impose direct on appellant; sanctions it is enough that alleged Commission’s actions will have impact Appellant’s substantial on him. . . . allegations go beyond the publicity attending normal prosecution; criminal he alleges attempt a concerted publicly to brand him a criminal without a trial.” Id., at 424-425.
Significantly, we noted one defect in the Commis- sion was it very “exercises a function much akin making an adjudication official of criminal culpability,” and that it was only “concerned with exposing violations of criminal Id., laws specific individuals.” at 427. empowered is to be used allegedly “Cl]t and used to guilty find named individuals of violating the criminal laws of Louisiana and the United States and to brand them as public.” Id., ibid., criminals in at 428. See also quoting Larche, Hannah v. (1960) U. S. (Frankfurter, concurring result). J., Although three Justices dissent would have complaint dismissed the for lack of since no standing, there were allegations that the appellant would be investigated, called as a or witness, named the Commission’s findings, at 436 U. S., J., they id., nevertheless (Harlan, dissenting), observed, at 438: a constitutionally significant
“[There is] distinction governmental between two kinds bodies. The first is agency an sole predominant whose function, without serving any public other interest, is to ex- pose publicize the names persons it finds guilty wrongdoing. To the extent that such a determination —whether called a ‘finding’ or an ‘ad-
judication’
finally
directly
affects the substan-
—
personal
tial
I
interests,
do not doubt that the Due
may
Process Clause
require that
it
accompanied
be
by many
adjudicatory
of the
procedural
traditional
safeguards.
Refugee
Cf. Joint Anti-Fascist
Com-
McGrath,
mittee (1951).”
The Court, however, relegates its discussion of Jenkins
to a dissembling
First,
footnote.
ignores
the Court
the
fact that
Jenkins
the Court in
clearly
recognized
con-
a
stitutional “liberty” or “property”
reputation
interest in
sufficient
to invoke the strictures of the Fourteenth
Amendment.13 It baffles
how,
me
in the face of that
holding,
Court
today’s
can come to
conclusion
re-
liance on the fact that
the conduct in question does not
“come within
Jenkins,
the language” of the dissent in
ante,
at
n. 4. Second, and more important,
Court’s footnote
per-
manifests
same confusion that
vades the remainder of its
it
opinion;
simply
fails
recognize the crucial difference between
question
there is
personal
whether
a
interest
good
one’s
name
and reputation
constitutionally
cognizable as a
“property”
interest within the Fourteenth
and Fifth Amendment Due Process
Clauses, and
totally separate question
particular
whether
government
course,
Of
oversights
such
typical
today’s opinion.
are
Com
g.,
pare, e.
Lopez,
Goss v.
(1975),
discussions
“The Commission thus bears close resemblance to certain federal agencies administrative .... agencies These have one salient fea ture in common, which distinguishes them from designed those simply 'expose.’ None of them is the anyone’s arbiter of final guilt or Each, innocence. rather, plays only preliminary role, *30 designed, in the usual course events, of to subsequent initiate a formal proceeding in which the accused will enjoy the full panoply procedural of safeguards. For this reason, and because agen such cies could not otherwise practicably pursue their investigative func tions, they have not required been to ‘adjudicatory’ follow procedures.” S., at 439. “Although respect in this the Commission is not different from the agencies federal above, discussed I ready am not say to that the consequences collateral government-sanctioned of opprobrium may not under some circumstances person entitle a to right, some con- sistent with the Commission’s performance efficient of its investi- gatory duties, to have say his public in rebuttal. However, the Com- procedures mission's are far from being niggardly in respect.... this “. . . may It be that my some of Brethren understand the com- plaint allege to that fact the Commission acts primarily as an agency ‘exposure,’ rather than one which serves the ends re- quired by the state statutes. If although I do not believe so— that complaint the can reasonably be thus construed —the area of disagreement may between us be small or Id., nonexistent.” at 442. by contrast, Court, The "exposure.” public
fected law body of case substantial repudiates a implicitly now interest constitutionally cognizable no such and finds into any inquiry foreclosing thus reputation, person’s in a interest protections accorded procedural the situation. given respond- what renders
In it is difficult to fathom short, from different reputation his somehow interest ent’s “ sole whose agency ‘an interest affected personal the pub- any other serving without function, predominant or per- publicize the names expose and interest, lic is to ” Ante, at 706 n. guilty wrongdoing.’ finds sons it be difference cannot Surely the S., at 438. quoting U. than a statu- officials rather police in the fact that found conduct, for stigmatizing engaged in the tory “agency” color “under requisite the action involve both situations be difference Ante, Nor can the at 697 n. 2. of” law. were petitioners’ actions argument in the found for that consideration interest,” “serving any public other in a balance process the due outcome of only affects the “liberty” personal is there case, not whether particular interests government weighed against to be interest It actions. official justifying State’s supposedly determined which is so Court, remarkable ante, generally see cases, language of other parse every Mem- the fact that oblivious to be thus II, Part can intentional, recently felt that so of the Court ber brand- wrongdoing alleged exposure public —like shoplifter” impli- an “active individual as of an ing — “property” constitutionally protected cates a procedures whether analysis as to requires interest the ac- were accorded satisfy process due adequate *31 by the State. cused Constantineau, 433 400 U. S. Wisconsin
Moreover,
Appeals
Court
on
was relied
which
(1971),
all on the fact asserted
rely
at
did
case,
this
Court today as
upon
controlling namely,
fact
—
“posting” denied Ms. Constantineau
right
purchase
alcohol for
ante,
a year,
at 708-709. Rather, Constanti
neau stated:
only
“The
present
issue
here is whether the
label or characterization given
person
a
by ‘posting,’
though a mark of serious illness to
is to
some,
such
others
a stigma or badge of disgrace that procedural
process
due
requires notice and an opportunity to be heard.”
U. S., at
(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 merely
be
the mark of illness,
to others it is a stigma, an official branding of
person.
The label is a degrading one. Under the Wisconsin Act,
a resident of Hartford
given
process
no
at all. This ap-
pellee was not afforded a chance to defend herself. She
may have been the victim of an
caprice.
official’s
Only
when the whole proceedings leading to the pinning of an
unsavory label on a person are aired can oppressive re
“
sults
prevented.”
be
without being accorded process due safeguards. We explicitly re ferred to liberty "the interest in reputation” implicated by such id., suspensions, upon based the fact suspension for certain actions stigmatize would the student, id., at 574-575: “The Due Process Clause also forbids arbitrary deprivations *32 Constantineau,
Thus, Jenkins and the decisions and upon authority which they relied, cogent are that a person's reputation interest in his and falls good name liberty. person’s good name, honor, reputation, integ 'Where a or rity is at government doing him,' stake of what the because is to requirements the minimal of the be satisfied. Wiscon Clause must Constantineau, sin (1971); Regents v. U. S. Board of Roth, supra, v. at suspended 573. School here appellees authorities periods up days from school for to 10 charges based on of mis conduct. If recorded, sustained charges seriously those could and damage standing the students’ pupils with their fellow and their teachers as opportunities well as interfere with higher later for employment. education and It is apparent right that the claimed of the unilaterally State to determine process without whether and immediately that misconduct has occurred require collides with the ments of Constitution.” the today’s
The Court states that holding “quite is consistent” with Goss because “Ohio law conferred right upon a all children to school, attend .. . the and act the school suspending officials the student there involved resulted in a denial or deprivation of right.” Ante, that However, 710. at only that was one-half of the holding in Goss. The property Ohio law established a interest of which the Court held a student would deprived not be without be- ing process. S., accorded due 419 U. However, at 573-574. the Court specifically recognized also liberty independent there was an implicated interest case, dependent the upon statutory the right school, to attend based, but above, as noted on fact the suspension for certain conduct could a “good name, affect student’s honor, reputation, integrity.” Id., at 574-575. Similarly, the language Regents idea Roth, in Board supra, “quite is any inconsistent with notion per- that a defamation petrated by government official but unconnected with refusal actionable,” rehire ante, would be at borders on the absurd. Roth, The Court like the Goss, Court quoted explicitly language from Constantineau that today denigrates, ante, the Court 707-709, and it was clear that Roth focusing was stigmatization on such. as We said there that process when safeguards due are re- quired situations, in such “purpose of such notice hearing and provide person an opportunity to name,” S., clear his 12 (emphasis supplied), at 573 n. only requirement found no process safeguards for due because present . “[i]n case . there . clearly require that within the broad term in procedural protections government afford before person reputation branding name and fringing that *33 discrediting as a criminal. The Court is reduced to the clear thrust of Constantineau and Jenkins by excluding reputation protec the in from interest all constitutional any possible interpretation” by tion “if there is other deny precedent which to their force as con according protection reputation.16 for the interest in stitutional Ante, approach The at 708. Court’s both —oblivious Mr. Chief Marshall’s admonition that “we must Justice constitution we forget, that it is expounding,” never are Maryland, 4 M‘Culloch v. (1819), Wheat. Meyer, Roth and to teaching the of cases such as necessary which were the of attentive to breadth consti “property” interests, 10, 15, tutional see nn. supra prior precedents by to water down our reinter- —is suggestion respondent’s ‘good name, reputa- is no whatever that the tion, honor, integrity’ or is at also Id., at stake.” 573. See Kennedy, J.) S., v. (opinion Arnett at Rehnquist, (“[L]iberty by itself, employment is not offended dismissal from by charge but upon unsupported instead dismissal based an which injure wrongfully reputation could employee the of an .... [T]he purpose hearing provide of the person such a case is to the ‘an opportunity .”). stigma to clear his name’ . . The fact that a imposed by government terminating the employment the of a government employee may make the of state action un- existence questionable, surely but it does not detract from fact that the the operative “liberty” concept stigmatization relates to the official individual, imposed government whether in its status employer as an or otherwise. insensitivity Similar is exhibited it Court when declares respondent pointed specific guarantee “has to no constitutional safeguarding Ante, the interest he asserts has been invaded.” at 700. gravamen respondent’s complaint The stigma is that he has been a criminal protections tized as of the without constitutional prevent designed to an erroneous determination of criminal culpability.
preting them as
injury
reputation
confined to
that af
an
fects
employment
individual’s
prospects or,
right
as “a
or status previously recognized by state law
[that
distinctly
Ante,
State]
altered
extinguished.”
711.
at
g.,
See also, e.
ante,
710-712.
704-706, 709-710,
The obvious answer is that such references in those cases
(when there even were such references)
concerned the
particular
fact situations
presented, and
nowise im
plied any
upon
limitation
the application of
princi
g., ante,
ples announced,
E.
at 709-710, quoting Board
Regents
Roth,
of a Moreover, criminal conviction. it is a direct statement law enforcement persons officials that flyer included in the are presently pursuing active an course of criminal All of conduct. this was done slightest without the regard process. for due There was no opportunity notice nor to be prior heard to the distribution flyer, of the and appellant and others have never been accorded opportunity charges to refute the a proceeding. criminal It goes saying without that the Police Chiefs cannot determine the guilt or innocence an accused in proceeding. an administrative Such a only can be determination made in a court of law. “The harm is all the more apparent branding because the has been done law enforcement power, prestige officials with the full authority positions. of their There can be little doubt that a person’s standing and associations community in the have been damaged seriously when law enforcement officials brand him an shoplifter, active accuse him of continuing course of criminal con- duct, group him with criminals and distribute photo- his name and graph to the merchants and community. businessmen of the Such acts are devastating a direct and good on the name, attack reputa- Moreover, analysis has a hollow ring light of the Court’s acceptance of the truth of the allegation shoplifter” “active label “seriously would impair [re- spondent’s] future employment opportunities.” Ante, 697. This is clear recognition that an official “badge of infamy” affects tangible interests of the defamed indi- vidual and merely an abstract interest in people how him; view “badge for the of infamy” has serious conse- quences in impact its on no less than the opportunities open to him enjoy life, liberty, pursuit and the hap- piness. It inexplicable how the say Court can that a person’s status is “altered” when the suspends State him from revokes school, his driver’s fires from license, him him job, denies right to purchase a drink of but is in alcohol, way no “altered” when it officially pins upon him the brand of a particularly criminal, since the Court recognizes how will deleterious be the consequences that inevitably flow from ante, its official act. See, g., e. at 708-709, precedents 711-712. Our clearly mandate person’s that a interest in his good name and reputation is cognizable “liberty” as a interest within the meaning of the Due Process Clause, and the Court simply has failed to distinguish precedents those in any rational manner in holding no invasion of a interest was effected in the stigmatizing official respondent as a criminal any “process” without whatsoever.
I always have thought one this Court’s most *35 important provide roles is to a formidable bulwark against governmental violation of the constitutional safe- tion, integrity honor person and of the involved. The of an fact arrest may without impair inore person’s or cloud a reputation. States, Michelson v. United 469, 335 (1948). U. S. 482... Such acts part on the of law enforcement may officials result in direct eco- nomic loss and opportunities restricted for schooling, employment professional and Mitchell, Menard v. licenses. 139 App. U. S. D. C. 113, 486, (1970).” 430 2d F. 490 505 1180, F. 2d (1974). 1183
735 guards securing society legitimate expecta- in our free the tions of every person dignity to innate and sense human of worth. It is a of that role and regrettable abdication a saddening denigration majestic Bill Rights of our of when the capricious Court official arbitrary tolerates conduct branding an individual as a criminal without compliance with procedures constitutional designed ensure the fair and ascertainment of impartial criminal culpability. Today’s surely must decision be short- a lived aberration.18
18
light
In
my
of
may
conviction that
the State
not condemn an
individual as a criminal
following
without
of
the mandates
the trial
I
process,
need not
question
address the
whether
there is an
independent
right
privacy
yield
which
would
same result.
Indeed, privacy
appear
notions
to be inextricably interwoven with
require
considerations which
that
single
a State not
an indi
punishment
vidual out for
judicial process.
outside the
Essentially,
concept
the core
would be
State cannot broadcast
such
even
factual events as the
occurrence
an
that does
arrest
not culmi
nate in a conviction when
legitimate
there are no
law enforcement
justifications
doing
for
so, since the
chargeable
State is
with the
knowledge
many
employers will treat an arrest
as
same
deny
conviction and
employment
individual
opportuni
or other
ties on the basis of á fact
probative
that has no
respect
value with
to actual criminal culpability. See,
g.,
e.
States,
Michelson v. United
335 U.
469,
(1948);
482
Schware v. Board
Bar Examin
ers,
S.,
at 241. A host of state
courts,
and federal
relying
on
privacy
both
notions
the presumption
of innocence, have
begun
develop
a line of
holding
cases
there are substantive
power
limits on the
government
to disseminate unresolved
arrest records outside
system,
see,
law enforcement
g.,
e.
Utz v.
Cullinane, 172
App.
67,
U. S.
D.
(1975);
C.