The 5th circuit’s logic creates a feedback loop, which Sotomayor referenced in her dissenting opinion. Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
Qualified immunity requires that a right be “clearly established” for officers to be held liable. But when a law has never been enforced, there’s by definition no case law saying enforcement would be unconstitutional. So the first person targeted under any dormant or unconstitutional statute has no remedy.
The 5th Circuit reasoning that the journalist “benefited” through minor advertising revenue and free meals from readers is exceptionally weak and implies that journalism done for any compensation, weakens 1st amendment protections.
Qualified immunity requires that a right be “clearly established” for officers to be held liable. But when a law has never been enforced, there’s by definition no case law saying enforcement would be unconstitutional. So the first person targeted under any dormant or unconstitutional statute has no remedy.
The 5th Circuit reasoning that the journalist “benefited” through minor advertising revenue and free meals from readers is exceptionally weak and implies that journalism done for any compensation, weakens 1st amendment protections.