10 First Amend. L. Rev. 125 (2011-2012)
Pearson v. Callahan and Qualified Immunity: Impact on First Amendment Law

handle is hein.journals/falr10 and id is 127 raw text is: PEARSON v. CALLAHAN AND QUALIFIED
IMMUNITY: IMPACT ON FIRST AMENDMENT
LAW
BY DAVID L. HUDSON, JR.
INTRODUCTION
At first glance, a search and seizure case involving informants,
the consent-once-removed doctrine,' and other Fourth Amendment
concepts would seemingly have little connection to freedom of
expression.2 Commentators have noted, however, that, despite the case's
scant media coverage,3 the United States Supreme Court's 2008 decision
in Pearson v. Callahan4 has had a substantial impact on First
Amendment litigation.
The Court's decision in Pearson dealt with qualified immunity-
a doctrine that enables government officials to avoid liability if they have
not violated clearly established constitutional or statutory law.' The case
. David L. Hudson, Jr. serves as a First Amendment Scholar for the First
Amendment Center (http://www.firstamendmentcenter.org). He also teaches First
Amendment classes at Vanderbilt Law School and the Nashville School of Law.
1. The consent-once-removed doctrine means that a suspect or defendant can
give consent even though he does not directly give consent to the police. Under this
theory, the suspect gives consent when he allows an individual, such as an
informant, to enter his home. The consent given to the informant is then transmuted
to the police.
2. David L. Hudson, Jr., 4th Amendment Ruling Could Influence First
Amendment Law, FIRST AMENDMENT CENTER ONLINE (Jan. 27, 2009),
http://www.firstamendmentcenter.org/4th-amendment-ruling-could-influence-first-
amendment-law.
3. Michelle Friedland et. al., A Shift in Constitutional Tort Jurisprudence, SAN
FRANCISCO ATT'Y: SUPREME COURT WATCH (The Bar Ass'n of San Francisco, San
Francisco, CA) (Summer, 2009), http://www.sfbar.org/forms/sfam/q22009/supreme
court-watch q2_09.pdf.
4. 555 U.S. 223 (2009).
5. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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