LESSON 3: CONSTITUTIONAL LAW
3.5 The Bill of Rights
3.5.4 The Fifth Amendment
Annotated Lecture Transcript
That brings us to the last of the 3 Amendments that are critically relevant to intelligence law—the Fifth Amendment.
The Fifth Amendment says:
Ø “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fifth Amendment is important in U.S. intelligence law for a few reasons, but the main reason is because of one right—the right to due process of law.
Your right to due process of law applies to government deprivations of 3 fundamental interests:
2) Liberty; or
Unless the deprivation you’re dealing with affects one of those interests, then procedural rights guaranteed by the Due Process Clause are not triggered.
188.8.131.52 Defamation by Government Officials as a Deprivation of Liberty under the Fifth Amendment’s Due Process Clause: Paul v. Davis (1976)
To give you an idea of where this comes up in intelligence context, activities that may implicate the Fifth Amendment’s Due Process Clause are:
Ø Terrorist Watch Lists and Unsubstantiated Information Sharing: To give you an idea of where deprivations of due process might come up in the intelligence context, consider the government’s Terrorist Watch Lists and the different varieties of information sharing involving unsubstantiated information about American citizens and other United States persons.
o Having your name put on a watch list that says you’re a terrorist, for example, can be very damaging to one’s liberty …
§ specifically, your freedom to fly on an aircraft, or make it through a TSA checkpoint still a virgin, or fulfill your lifelong dream of a career in crop dusting.
o Being labeled a “terrorist” by the government can also be a turn-off to prospective employers and may diminish your employment prospects.
o Even if you get the job, it may hurt your chances for promotion if you ever have to travel to China for work and need to explain to your boss that you have to take a boat because the TSA says you’re a terrorist.
§ Bosses hate that!
o The fact that you’re never told that you’re on the list and can’t challenge the designation means you’re never given any process at all.
§ You just have to trust the Executive Branch to police itself and hope that the millions of employees working in a national security or law enforcement organization across America are all equally careful and prudent when making these designations.
§ You can be certain that each one of the over 1 million people who have made it on these lists were carefully considered before being designated and are all in fact real, genuine, honest-to-God terrorists.
§ All 1 million of ‘em.
§ This means that we have more terrorists in this country than lawyers!
o The arbitrary and capricious listing of American citizens on these lists definitely raises Fifth Amendment Due Process Clause concerns, so in Course II we discuss Supreme Court cases like Wisconsin v. Constantineau and Paul v. Davis.
§ These cases hash out the standard for when a government injury to your reputation rises to the level of a deprivation of liberty sufficient to trigger Fifth Amendment Due Process Clause protections.
§ First, Wisconsin v. Constintineau recognized our reputation as being an aspect of the “liberty” protected by the Due Process Clause so that arbitrary destruction of your reputation by the government might give rise to a cause of action in some cases.
§ Then Paul v. Davis cut back on it with the “stigma-plus doctrine,” that requires proof of additional harm above and beyond the stigma before triggering Due Process Clause protection.
§ This standard makes it more difficult, but not impossible, to sue an intelligence or police officer who willful damages an individual’s reputation arbitrarily or unprofessionally.
Ø Standing Problems in Group Stigma Cases: Bringing suits based purely on stigma can also raise standing problems under Article III in addition to failing to meet the threshold requirements necessary to implicate a deprivation of either a ‘liberty’ or "property" interest which is essential to triggering Fifth or Fourth Amendment Due Process Clause protections.
The bottom line on using the Due Process Clause of either the Fifth or Fourteenth Amendment as the basis for a civil rights action under either 42 U.S.C. 1983 or Bivens is generally a bad idea unless you can establish an injury to a concrete demonstrable “property” interest.
The Due Process Clause protects only 3 fundamental interests:
2) Liberty; or
Your strongest civil rights action occurs when the government deprives you of either life or property without due process of law.
Of course, if they deprive you of your life, you’ll be dead and a Bivens action won’t do you much good.
Absent actual physical imprisonment or some other restraint on your physical liberty, suing a government official for depriving you of your “liberty” under the Due Process Clause is going to be a weak case in all but extraordinary circumstances.
The Court interprets “liberty” narrowly, to mean physical liberty, freedom of movement.
Claiming that the NSA’s warrantless wiretapping program deprives you of the liberty to contact friends overseas will not be a winning argument to most judges—in fact, it won’t even get you past a motion for summary judgment before trial.
My advice to you is, when you have outrageous conduct by a government official that deprives you of your liberty, try to figure out if it violates any other right, or if it is best handled under traditional tort remedies under state law.
The Civil Rights Act and Bivens are not the right vehicles to remedy all abuses.
Keep in mind also that it is generally very difficult to prevail in a suit against government officials.
Judges are government officials themselves and generally view with suspicion those who would sue a public employee for official conduct.
You can only bring a claim in cases of truly egregious misconduct that is clearly established by the evidence and that constitutes a cause of action clearly recognized by the courts.
An example would be the warrantless search of your home by police.
The basis for your civil rights claim would be willful violation of the Fourth Amendment.
Police know they need a warrant to search a home in most cases, so they are far less likely to be entitled to qualified immunity for willful violation of that requirement.
If you can prove actual malice or bad faith on the part of the officials involved, then you may very well be able to survive a motion for summary judgment before trial.
 U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).
 Wisconsin v. Constantineau, 400 U.S. 433 (1971).
 Paul v. Davis, 424 U.S. 693 (1976) (Official Case Syllabus: "A photograph of respondent bearing his name was included in a "flyer" of "active shoplifters," after he had been arrested on a shoplifting charge in Louisville, Ky. After that charge had been dismissed respondent brought this action under 42 U.S.C. § 1983 against petitioner police chiefs, who had distributed the flyer to area merchants, alleging that petitioners' action under color of law deprived him of his constitutional rights. The District Court granted petitioners' motion to dismiss. The Court of Appeals reversed, relying on Wisconsin v. Constantineau, 400 U.S. 433.
Ø 1. Petitioners' action in distributing the flyer did not deprive respondent of any "liberty" or "property" rights secured against state deprivation by the Due Process Clause of the Fourteenth Amendment. Pp. 699-710.
o (a) The Due Process Clause does not ex proprio vigore extend to a person a right to be free of injury wherever the State may be characterized as the tortfeasor. Pp. 699-701.
o (b) Reputation alone, apart from some more tangible interests such as employment, does not implicate any "liberty" or "property" interests sufficient to invoke the procedural protection of the Due Process Clause; hence to establish a claim under § 1983 and the Fourteenth Amendment more must be involved than simply defamation by a state official. Wisconsin v. Constantineau, supra, distinguished. Pp. 701-710.
o (c) Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation that has been altered by petitioners' actions, and the interest in reputation alone is thus quite different from the "liberty" or "property" recognized in such decisions as Bell v. Burson, 402 U.S. 535, and Morrissey v. Brewer, 408 U.S. 471, where the guarantee of due process required certain procedural safeguards before the State could alter the status of the complainants. Pp. 710-712.
Ø 2. Respondent's contention that petitioners' defamatory flyer deprived him of his constitutional right to privacy is without merit, being based not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private" but on a claim that the State may not publicize a record of an official act like an arrest. Pp. 712-713.
Ø 505 F.2d 1180, reversed.").
 Paul v. Davis involved a Louisville Police Chief who distributed a flyer of “Active Shoplifters” to 800 merchants around the city. Davis was listed on the flyer even though he had pled not guilty to the charge and had not been convicted at the time the flyer was distributed. The charges against him were later dismissed. See Paul v. Davis, 424 U.S. 693, 694-696 (1976) (“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 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:
CITY OF LOUISVILLE - JEFFERSON COUNTY
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 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.”).
 See Allen v. Wright, 468 U.S. 737 (1984); but see also generally Thomas Healy, Stigmatic Harm and Standing, 92 Iowa L. Rev. 417 (2007); but see also Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. Pa. L. Rev. 635 (1985); but see also Girardeau A. Spann, Color-Coded Standing, 80 Cornell L. Rev. 1422 (1995).