Paul v. Davis

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

    No. 74-891 Argued: November 4, 1975 --- Decided: March 23, 1976
    MR. JUSTICE REHNQUIST delivered the opinion of the Court.

    We granted certiorari, 421 U.S. 909 (1975), in this case to consider whether respondent's charge that petitioners' defamation of him, standing alone and apart from any other governmental action with respect to him, stated a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment. For the reasons hereinafter stated, we conclude that it does not.

    Petitioner Paul is the Chief of Police of the Louisville, Ky., Division of Police, while petitioner McDaniel occupies the same position in the Jefferson County, Ky., Division of Police. In late 1972, they agreed to combine their efforts for the purpose of alerting local area merchants to possible shoplifters who might be operating during [p695] the Christmas season. In early December, petitioners distributed to approximately 800 merchants in the Louisville metropolitan area a "flyer," which began as follows:

    TO: BUSINESS MEN IN THE METROPOLITAN AREA

    The Chiefs of The Jefferson County and City of Louisville Police Departments, in an effort to keep their officers advised on shoplifting activity, have approved the attached alphabetically arranged flyer of subjects known to be active in this criminal field.

    This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects. These persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas.

    Only the photograph and name of the subject is shown on this flyer; if additional information is desired, please forward a request in writing. . . .

    The flyer consisted of five pages of "mug shot" photos, arranged alphabetically. Each page was headed:

    NOVEMBER 1972

    CITY OF LOUISVILLE

    JEFFERSON COUNTY

    POLICE DEPARTMENTS

    ACTIVE SHOPLIFTERS

    In approximately the center of page 2 there appeared photos and the name of the respondent, Edward Charles Davis III.

    Respondent appeared on the flyer because, on June 14, 1971, he had been arrested in Louisville on a charge of shoplifting. He had been arraigned on this charge in September, 1971, and, upon his plea of not guilty, the [p696] charge had been "filed away with leave [to reinstate]," a disposition which left the charge outstanding. Thus, at the time petitioners caused the flyer to be prepared and circulated, respondent had been charged with shoplifting but his guilt or innocence of that offense had never been resolved. Shortly after circulation of the flyer, the charge against respondent was finally dismissed by a judge of the Louisville Police Court.

    At the time the flyer was circulated, respondent was employed as a photographer by the Louisville Courier-Journal and Times. The flyer, and respondent's inclusion therein, soon came to the attention of respondent's supervisor, the executive director of photography for the two newspapers. This individual called respondent in to hear his version of the events leading to his appearing in the flyer. Following this discussion, the supervisor informed respondent that, although he would not be fired, he "had best not find himself in 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 the alleged violation of rights guaranteed to him by the Constitution of the United States. Claiming jurisdiction under 28 U.S.C. § 1343(3), respondent sought damages as well as declaratory and injunctive relief. Petitioners moved to dismiss this complaint. The District Court granted this motion, ruling that "[t]he facts alleged in this case do not establish that plaintiff has been deprived of any right secured to him by the Constitution of the United States."

    Respondent appealed to the Court of Appeals for the Sixth Circuit, which recognized that, under our decisions, for respondent to establish a claim cognizable under § 1983, he had to show that petitioners had deprived [p697] him of a right secured by the Constitution [n1] of the United States, and that any such deprivation was achieved under color of law. [n2] Adickes v. Kress & Co., 398 U.S. 144, 150 (1970). The Court of Appeals concluded that respondent had set forth a § 1983 claim "in that he has alleged facts that constitute a denial of due process of law." 505 F.2d 1180, 1182 (1974). In its view, our decision in Wisconsin v. Constantineau, 400 U.S. 433 (1971), mandated reversal of the District Court.

    I

    Respondent's due process claim is grounded upon his assertion that the flyer, and in particular the phrase "Active Shoplifters" appearing at the head of the page upon which his name and photograph appear, impermissibly deprived him of some "liberty" protected by the Fourteenth Amendment. His complaint asserted that the "active shoplifter" designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages.

    Respondent brought his action, however, not in the state courts of Kentucky, but in a United States District [p698] Court for that State. He asserted not a claim for defamation under the laws of Kentucky, but a claim that he had been deprived of rights secured to him by the Fourteenth Amendment of the United States Constitution. Concededly, if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law. But, he contends, since petitioners are, respectively, an official of city and of county government, his action is thereby transmuted into one for deprivation by the State of rights secured under the Fourteenth Amendment.

    In Greenwood v. Peacock, 384 U.S. 808 (196), in the course of considering an important and not wholly dissimilar question of the relationship between the National and the State Governments, the Court said that

    [i]t is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail.

    Id. at 832. We, too, pause to consider the result should respondent's interpretation of § 1983 and of the Fourteenth Amendment be accepted.

    If respondent's view is to prevail, a person arrested by law enforcement officers who announce that they believe such person to be responsible for a particular crime in order to calm the fears of an aroused populace presumably obtains a claim against 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 than it is that reputation is protected against state injury, it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle would not have claims equally cognizable under § 1983.

    It is hard to perceive any logical stopping place to such [p699] a line of reasoning. Respondent's construction would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under "color of law" establishing a violation of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent.

    II

    The result reached by the Court of Appeals, which respondent seeks to sustain here, must be bottomed on one of two premises. The first is that the Due Process Clause of the Fourteenth Amendment and § 1983 make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state law tort claims. The second premise is that the infliction by state officials of a "stigma" to one's reputation is somehow different in kind from the infliction by the same official of harm or injury to other interests protected by state law, so that an injury to reputation is actionable under § 1983 and the Fourteenth Amendment even if other such harms are not. We examine each of these premises in turn.

    A

    The first premise would be contrary to pronouncements in our cases on more than one occasion with respect to the scope of § 1983 and of the Fourteenth Amendment. In the leading case of Screws v. United States, 325 U.S. 91 (1945), the Court considered the proper application of the criminal counterpart of § 1983, likewise intended by Congress to enforce the guarantees of the Fourteenth [p700] Amendment. In his opinion for the Court plurality in that case, Mr. Justice Douglas observed:

    Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.

    325 U.S. at 108-109.

    After recognizing that Congress' power to make criminal the conduct of state officials under the aegis of the Fourteenth Amendment was not unlimited because that Amendment "did not alter the basic relations between the States and the national government," the plurality opinion observed that Congress should not be understood to have attempted

    to make all torts of state officials federal crimes. It brought within [the criminal provision] only specified acts done "under color" of law, and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States.

    Id. at 109.

    This understanding of the limited effect of the Fourteenth Amendment was not lost in the Court's decision in Monroe v. Pape, 365 U.S. 167 (1961). There, the Court was careful to point out that the complaint stated a cause of action under the Fourteenth Amendment because it alleged an unreasonable search and seizure violative of the guarantee "contained in the Fourth Amendment [and] made applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment." Id. at 171. Respondent, however, has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded. [p701] Rather, he apparently believes that the Fourteenth Amendment's Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever 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 any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102 (1971); a 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 infliction by state officials of a "stigma" to one's reputation is somehow different in kind from infliction by a state official of 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 be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause. As we have said, the Court of Appeals, in reaching a contrary conclusion, relied primarily upon Wisconsin v. Constantineau, 400 U.S. 433 (1971). We think the correct import of that [p702] decision, however, must be derived from an examination of the precedents upon which it relied, as well as consideration of the other decisions by this Court, before and after Constantineau, which bear upon the relationship between governmental defamation and the guarantees of the Constitution. While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth [n3] or Fourteenth Amendment.

    In United States v. Lovett, 328 U.S. 303 (1946), the Court held that an Act of Congress which specifically forbade payment of any salary or compensation to three named Government agency employees was an unconstitutional bill of attainder. The three employees had been proscribed because a House of Representatives subcommittee found them guilty of "subversive activity," and therefore unfit for Government service. The Court, while recognizing that the underlying charges upon which Congress' action was premised "stigmatized [the employees'] reputation and seriously impaired their chance to earn a living," id. at 314, also made it clear that "[w]hat is involved here is a congressional proscription of [these employees], prohibiting their ever holding a government job." Ibid.

    Subsequently, in Joint Anti-Fascist Refugee Comm. [p703] v. McGrath, 341 U.S. 123 (1951), the Court examined the validity of the Attorney General's designation of certain organizations as "Communist" on a list which he furnished to the Civil Service Commission. There was no majority opinion in the case; Mr. Justice Burton, who announced the judgment of the Court, wrote an opinion which did not reach the petitioners' constitutional claim. Mr. Justice Frankfurter, who agreed with Mr. Justice Burton that the petitioners had stated a claim upon which relief could be granted, noted that

    publicly designating an organization as within the proscribed categories of the Loyalty Order does not directly deprive anyone of liberty or property.

    Id. at 164. Mr. Justice Douglas, who likewise concluded that petitioners had stated a claim, observed in his separate opinion:

    This is not an instance of name calling by public officials. This is a determination of status -- a proceeding to ascertain whether the organization is or is not "subversive." This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General's determination to penalize or police these organizations.

    Id. at 175.

    Mr. Justice Jackson, who likewise agreed that petitioners had stated a claim, commented:

    I agree that mere designation as subversive deprives the organizations themselves of no legal right or immunity. By it, they are not dissolved, subjected to any legal prosecution, punished, penalized, or prohibited from carrying on any of their activities. Their claim of injury is that they cannot attract audiences, enlist members, or obtain contributions [p704] as readily as before. These, however, are sanctions applied by public disapproval, not by law.

    Id. at 183-184.

    He went on to say:

    [T]he real target of all this procedure is the government employee who is a member of, or sympathetic to, one or more accused organizations. He not only may be discharged, but disqualified from employment, upon no other ground than such membership or sympathetic affiliation. . . . To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employment so dominates the field of opportunity.

    Id. at 184-185.

    Mr. Justice Reed, writing for himself, The Chief Justice, and Mr. Justice Minton, would have held that petitioners failed to state a claim for relief. In his dissenting opinion, after having stated petitioners' claim that their listing resulted in a deprivation of liberty or property contrary to the procedure required by the Fifth Amendment, he said:

    The contention can be answered summarily by saying that there is no deprivation of any property or liberty of any listed organization by the Attorney General's designation. It may be assumed that the listing is hurtful to their prestige, reputation and earning power. It may be such an injury as would entitle organizations to damages in a tort action against persons not protected by privilege. . . . This designation, however, does not prohibit any business of the organizations, subject them to any punishment or deprive them of liberty of speech or other freedom.

    Id. at 202.

    Thus, at least six of the eight Justices who participated [p705] in that case viewed any "stigma" imposed by official action of the Attorney General of the United States, divorced from its effect on the legal status of an organization or a person, such as loss of tax exemption or loss of government employment, as an insufficient basis for invoking the Due Process Clause of the Fifth Amendment.

    In Wieman v. Updegraff, 344 U.S. 183 (1952), the Court again recognized the potential "badge of infamy" which might arise from being branded disloyal by the government. Id. at 191. But it did not hold this sufficient by itself to invoke the procedural due process guarantees of the Fourteenth Amendment; indeed, the Court expressly refused to pass upon the procedural due process claims of petitioners in that case. Id. at 192. The Court noted that petitioners would, as a result of their failure to execute the state loyalty oath, lose their teaching positions at a state university. It held such state action to be arbitrary because of its failure to distinguish between innocent and knowing membership in the associations named in the list prepared by the Attorney General of the United States. Id. at 191. See also Peters v. Hobby, 349 U.S. 331, 347 (1955).

    A decade after Joint Anti-Fascist Refugee Comm. v. McGrath, supra, the Court returned to consider further the requirements of procedural due process in this area in the case of Cafeteria Workers v. McElroy, 367 U.S. 886 (1961). Holding that the discharge of an employee of a Government contractor in the circumstances there presented comported with the due process required by the Fifth Amendment, the Court observed:

    Finally, it is to be noted that this is not a case where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity. See [p706] Wieman v. Updegraff, 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 by branding a government employee as "disloyal," and thereby stigmatizing his good name. But the Court has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment. [n4] [p707]

    It is noteworthy that, in Barr v. Matteo, 360 U.S. 564 (1959), and Howard v. Lyons, 360 U.S. 593 (1959), this Court had before it two actions for defamation brought against federal officers. But in neither opinion is there any intimation that any of the parties to those cases, or any of the Members of this Court, had the remotest idea that the Due Process Clause of the Fifth Amendment might itself form the basis for 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 authorizing the practice of "posting" was unconstitutional because it failed to provide procedural safeguards of notice and an opportunity to be heard, prior to an individual's being "posted." Under the statute, "posting" consisted of forbidding in writing the sale or delivery of alcoholic beverages to certain persons who were determined to have become hazards to themselves, to their family, or to the community by reason of their "excessive drinking." The statute also made it a misdemeanor to sell or give liquor to any person so posted. See 400 U.S. at 434 n. 2.

    There is undoubtedly language in Constantineau which is sufficiently ambiguous to justify the reliance upon it by the Court of Appeals:

    Yet certainly where the state attaches "a badge of infamy" to the citizen, due process comes into play. [p708] Wieman v. Updegraff, 344 U.S. 183, 191.

    [T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.

    Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168 (Frankfurter, J., concurring).

    Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.

    Id. at 437 (emphasis supplied).

    The last paragraph of the quotation could be taken to mean that, if a government official defames a person, without more, the procedural requirements of the Due Process Clause of the Fourteenth Amendment are brought into play. If read that way, it would represent a significant broadening of the holdings of Wieman v. Updegraff, 344 U.S. 183 (1952), and Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), relied upon by the Constantineau Court in its analysis in the immediately preceding paragraph. We should not read this language as significantly broadening those holdings without in any way adverting to the fact if there is any other possible interpretation of Constantineau's language. We believe there is.

    We think that the italicized language in the last sentence quoted, "because of what the government is doing to him," referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law -- the right to purchase or obtain liquor in common with the rest of the citizenry. "Posting," therefore, significantly altered her status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting [p709] from the defamation, justified the invocation of procedural safeguards. The "stigma" resulting from the defamatory character of the posting was doubtless an important factor in evaluating the extent of harm worked by that act, but we do not think that such defamation, standing alone, deprived Constantineau of any "liberty" protected by the procedural guarantees of the Fourteenth Amendment.

    This conclusion is reinforced by our discussion of the subject a little over a year later in Board of Regents v. Roth, 408 U.S. 564 (1972). There, we noted that "the range of interests protected by procedural due process is not infinite," id. at 570, and that, with respect to property interests, they are,

    of course, . . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

    Id. at 577. While Roth recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation, its language is quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable under the Fourteenth Amendment:

    The state, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. . . .

    Similarly, there is no suggestion that the State, in declining to reemploy the respondent, imposed o [p710] him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.

    Id. at 573 (emphasis supplied). Thus, it was not thought sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of the termination of employment. Certainly there is no suggestion in Roth to indicate that a hearing would be required each time the State, in its capacity as employer, might be considered responsible for a statement defaming an employee who continues to be an employee.

    This conclusion is quite consistent with our most recent holding in this area, Goss v. Lopez, 419 U.S. 565 (1975), that suspension from school based upon charges of misconduct could trigger the procedural guarantees of the Fourteenth Amendment. While the Court noted that charges of misconduct could seriously damage the student's reputation, id. at 574-575, it also took care to point out that Ohio law conferred a right upon all children to attend school, and that the act of the school officials suspending the student there involved resulted in a denial or deprivation of that right.

    III

    It is 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 "liberty" or "property" as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law. [n5] and we [p711] have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. In Bell v. Burson, 402 U.S. 535 (1971), for example, the State, by issuing drivers' licenses, recognized in its citizens a right to operate a vehicle on the highways of the State. The Court held that the State could not withdraw this right without giving petitioner due process. In Morrissey v. Brewer, 408 U.S. 471 (1972), the State afforded parolees the right to remain at liberty as long as the conditions of their parole were not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment's guarantee of due process of law required certain procedural safeguards.

    In each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment. But the interest in reputation alone which respondent seeks to vindicate in this action in federal court is quite different from the "liberty" or "property" recognized in those decisions. Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a [p712] result of petitioners' actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where, as here, inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under the State's laws. For these reasons, we hold that the interest in reputation asserted in this case is neither "liberty" nor "property" guaranteed against state deprivation without due process of law.

    Respondent in this case cannot assert denial of any right vouchsafed to him by the State, and thereby protected under the Fourteenth Amendment. That being the case, petitioners' defamatory publications, however seriously they may have harmed respondent's reputation, did not deprive him of any "liberty" or "property" interests protected by the Due Process Clause.

    IV

    Respondent's complaint also alleged a violation of a "right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." The Court of Appeals did not pass upon this claim since it found the allegations of a due process violation sufficient to require reversal of the District Court's order. As we have agreed with the District Court on the due process issue, we find it necessary to pass upon respondent's other theory in order to determine whether there is any support for the litigation he seeks to pursue.

    While there is no "right of privacy" found in any specific guarantee of the Constitution, the Court has recognized that "zones of privacy" may be created by [p713] more specific constitutional guarantees, and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153 (1973). Respondent's case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v. United States, 389 U.S. 347, 351 (1967); 410 U.S. 113, 152-153 (1973). Respondent's case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v. United States, 389 U.S. 347, 351 (1967); Terry v. Ohio, 392 U.S. 1, 8-9 (1968). And our other "right of privacy" cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe, the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental" or "implicit in the concept of ordered liberty" as described in 392 U.S. 1, 8-9 (1968). And our other "right of privacy" cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe, the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental" or "implicit in the concept of ordered liberty" as described in Palko v. Connecticut, 302 U.S. 319, 325 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection -- matters relating to marriage, procreation, contraception, family relationships, and childrearing and education. In these areas, it has been held that there are limitations on the States' power to substantively regulate conduct.

    Respondent's claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private," but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.

    None of respondent's theories of recovery were based upon rights secured to him by the Fourteenth Amendment. [p714] 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.

    1. The "and laws" provision of 42 U.S.C. § 1983 is not implicated in this case.

    2. It is not disputed that petitioners' actions were a part of their official conduct and that this element of a § 1983 cause of action is satisfied here.

    3. If respondent is correct in his contention that defamation by a state official is actionable under the Fourteenth Amendment, it would, of course, follow that defamation by a federal official should likewise be actionable under the cognate Due Process Clause of the 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 the Court's decisions interpreting either Clause as relevant to our examination of respondent's claim.

    4. We cannot agree with the suggestion of our Brother BRENNAN, dissenting, post: at 727, that the actions of these two petitioner law enforcement officers come within the language used by Mr. Justice Harlan in his dissenting opinion in Jenkins v. McKeithen, 395 U.S. 411, 433 (1969). They are not by any conceivable stretch of the imagination, either separately or together,

    an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons 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 Civil Rights established by Congress in 1957, the procedures of which were upheld against constitutional challenge by this Court in Hannah v. Larche, 363 U.S. 420 (1960). There, the Court described the functions of the Commission in this language:

    It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.

    Id. at 441 (emphasis supplied).

    Addressing itself to the question of whether the Commission's

    proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions,

    the Court said that

    even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.

    Id. at 443.

    5. There are other interests, of course, protected not by virtue of their recognition by the law of a particular State, but because they are guaranteed in one of the provisions of the Bill of Rights which has been "incorporated" into the Fourteenth Amendment. Section 1983 makes a deprivation of such rights actionable independently of state law. See Monroe v. Pape, 365 U.S. 167 (1961).


    Our discussion in Part III is limited to consideration of the procedural guarantees of the Due Process Clause, and is not intended to describe those substantive limitations upon state action which may be encompassed within the concept of "liberty" expressed in the Fourteenth Amendment. Cf. Part IV, infra.
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