Most people don’t know they are on a government watchlist until they find that they cannot do something mundane like board a plane, purchase a firearm, or access their bank account. For most people, discovering this is dismaying and disconcerting — and, if other people learn about it, potentially defamatory.
The government’s easy propensity to place people on watchlists traces to the 1975 Supreme Court case of Paul v. Davis. Davis is a companion case to New York Times v. Sullivan. Both overhauled centuries of legal philosophy and precedent on the value of reputation, and each decision created a two-tier system at the expense of reputation.
Edward C. Davis III was a newspaper photographer whose name and face was among those listed as “Active Shoplifters” in a flyer that the Louisville Police Department circulated to local stores every December. Over a year earlier, Davis had pled not guilty to a shoplifting charge. The court subsequently “filed [it] away with leave to reinstate.” That is not a full dismissal, but it was the last Davis had heard of the charge until he found himself in the police department’s mugbook.
When coworkers learned that Davis was on the active shoplifter list, his boss “informed me that the shoplifting notice would impair my ability to perform my photographic duties. He felt that the company could not feel free to send me on any assignments that would require me to come in contact with local retail stores.”
Suffering “humiliation and ridicule,” Davis resigned about six months later “in order to regain my full sanity and keep what little self-respect I had left.” He found it difficult to find a new job, as the tag “Active Shoplifter” followed him to each interview.
The Supreme Court acknowledged in Davis that government listings stigmatize and interfere with the right to reputation of people on the lists.
However, rather than adhering to their precedent from only five years earlier, the Supreme Court chose to create a new standard to bar civil rights actions against government defamation-by-blacklist.
This became known as the “stigma-plus” doctrine: it’s not enough to have your reputation damaged because you’re labeled a shoplifter (or, as the decades have gone on, as any of the “state-instituted classifications being issued today — for example, ‘sex offender,’ ‘gang member,’ ‘child abuser,’ and ‘terrorist.’”). In order to have a federal civil rights claim against the government entity that defamed you, you have to concurrently suffer some other deprivation of your liberty and property.
To demonstrate, the Court distinguished Davis from its 1971 ruling in Wisconsin v. Constantineau by saying that Constantineau was defamed by being publicly listed as a drunk and that people on the list were banned from buying alcohol. Being deprived of her right to buy alcohol was the necessary “plus” to go with the stigma. Davis had no such plus.
Whereas Sullivan’s “absolute malice” standard makes it nearly impossible for a public figure to defend their reputation from the media, Davis’s “stigma-plus” doctrine places a similarly impassable standard in front of citizens trying to defend their reputation against the government.
Examining the constitutional defects and reputational harm of government watchlists, law professor Edward Mitnick highlighted the contrast between Constantineau being listed as a “drunkard” and Davis an “active shoplifter,” on one hand, and what watchlisted citizens face today. “The extent of the damage inflicted by an erroneously applied social label would seem directly proportional to the danger posed to society by those genuinely deserving the label. That is, greater reputational harm is in part a function of the very real social dangers we face.”
Reputation, Government Watchlists, and the World of Sports
Mitnick wrote in 2009, shortly before the Sullivan and Davis rulings and their progeny would converge via two forces. First was the emergence of digital and social media cancellations. Second, was an organization that would achieve the worst excesses of the public-private partnership of reputation destruction: the U.S. Center for SafeSport.
The sexual abuse scandal involving Larry Nassar and USA Gymnastics catalyzed athlete safeguarding into a matter of Congressional concern. Congress amended the Ted Stevens Olympic and Amateur Sports Act in 2018 to designate the U.S. Center for SafeSport as the national sport safeguarding organization. The Center’s jurisdiction covers any organization under the umbrella of the United States Olympic and Paralympic Committee, from local sports clubs to national teams. Congress gave the Center sole authority to promulgate the SafeSport Code, which sets the organization’s definitions of “misconduct,” and its own investigation and adjudication processes.
The Act requires the Center to “publish and maintain a publicly accessible internet website that contains a comprehensive list of adults who are barred by the Center.”
Over 2,000 people are currently in the Center for SafeSport’s Centralized Disciplinary Database, sharing space with Larry Nassar and other convicted sex offenders. Listed alongside them are some individuals whose decades-old non-sexual, non-violent arrests predate the Center and its unlimited backward-looking jurisdiction and open-ended “analogous to Prohibited Conduct” clause. Others are there for consensual relationships with another adult that went south. At least one coach is there with almost the identical fact pattern as Edward Davis — a dismissed charge.
The Center does not issue press releases when they add someone to the database. But upon an easily verifiable tip (just search the database), it’s an easy source of clicks and shares for local, national, and sport-specific media to run a story about a coach or other sportsperson being added to the list that the general population only knows of because of Larry Nassar. His role as the catalyst is included as context in nearly every article, thereby associating the most recent accused with the most egregious convicted serial pedophile.
The Code bans any organization that is certified by any national governing body from hiring anyone on that list. Upon being publicly listed, you are fired and prohibited from working in the industry.
Stigma, meet plus.
Justice Brennan concluded his dissent in Paul v. Davis with the hope that the “decision must surely be a shortlived aberration.” There’s a bit of irony there, as Brennan wrote the Court’s majority opinion in New York Times v. Sullivan.
While the issue of free speech dominates the discourse around Sullivan, we shouldn’t neglect that decision’s equally consequential and aberrational conception of reputation. Eleven years after Sullivan, the decision in Davis fully “deconstitutionalized” this fundamental component of our liberty, and our individual and social identities.
Any review of Sullivan, as Justice Clarence Thomas is eager to undertake, should include a restoration of Americans’ right to their reputation. Failing that, individuals blacklisted and defamed by any level or agency of government may have to wait a few years for some of the lawsuits making their way through the federal courts to rise to the Supreme Court for a Davis challenge.
READ MORE from George M.J. Perry:
Why We (Sadly) Need to Prove the Obvious About Sex in Sports