This is the Cato Daily Podcast for Wednesday, July 7th, 2021.

I'm Caleb Brown.

The Supreme Court's term is over, but on the way out, Justice Clarence Thomas made a point of suggesting that the High Court

revisit the doctrine of qualified immunity.

Cato's J. Schweiker says it's a welcome statement, but so far Thomas is the only member of

the court to repeatedly urge that the doctrine be

revisited. We spoke yesterday. This case is Hogarth versus Rhodes and the

issue in this case was the application of a public university's so-called free speech

policies to students that wanted to start a turning point USA chapter at their school. And these students set up a table on campus at a little space

off of a walkway leading up to the student union so that people could come speak with

them about the group if they were interested. But a university police officer

arrived and told them they had to take down their table and ultimately they were told that

they needed to get permission from the school to set up a table anywhere on campus and

that if they wanted to speak in one of the designated free speech areas they had to register those 72 hours in advance.

And so they brought a Section 1983 claim against the university officials claiming obviously

that this was a violation of their First Amendment rights. against the which is sort of the quintessential First Amendment violation having to ask the government

permission before you are allowed to speak.

And the Eighth Circuit Court of Appeals held that indeed this did violate the student's First Amendment rights.

But they nevertheless granted the university officials qualified immunity because they held that it was not clearly established in their circuit whether a school imposing this sort of free speech policy was definitely unconstitutional.

And just last week, the Supreme Court declined to hear that case so that decision will

stand. All right so that's all prologue to the fact that Justice Thomas wrote

separately after the Supreme Court chose not to hear this case,

...