Wednesday, October 30, 2013

HI - Your reputation and standing are protected liberties

Original Article

This article is about sex offenders, so click the above link to read the entire post.


By Will Bassler

A person’s reputation and standing in the community are a protected liberty interest as described by United States Supreme Court rulings as laid out in the Hawaii Supreme Court decision in State of Hawaii v Bani. Below is an excerpt from the Hawaii Supreme Court decision.

The United States Supreme Court has previously recognized that a person’s reputation is a protected liberty interest under the federal due process clause. Wisconsin v. Constantineau, 400 U.S. 433 (1971) (hereafter “Constantineau”); Board of Regents v. Roth, 408 U.S. 564 (1972) (hereafter “Roth”).

In Constantineau, the State of Wisconsin authorized the posting of a notice prohibiting the sale or gift of liquor to any person who “‘by excessive drinking’ produces described conditions or exhibits specified traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous to the peace’ of the community.” On appeal, the Constantineau Court recognized that “[i]t would be naive not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule.” 400 U.S. at 436. The Court therefore held that a protectible liberty interest is implicated “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her.]” Id. at 437.

One year later, the Court again recognized a person’s liberty interest may be implicated by damage to his or her reputation. See Roth, 408 U.S. at 573. The plaintiff in Roth, a university professor, alleged that “the failure of University officials to give him notice of any reason for non-retention and an opportunity for a hearing violated his right to procedural due process of law.” Id. at 569. The Roth Court reasoned that in declining to hire the plaintiff, the state had neither advanced “any charge against him that might seriously damage his standing and associations in the community” nor “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. at 573. The Roth Court noted, however, that “a different case” would have been presented had the state either damaged the plaintiff’s reputation or imposed a stigma on him. Id. at 573-74.

However, in Paul v. Davis, 424 U.S. 693, reh’g denied, 425 U.S. 985 (1976), the Court clarified that “reputation alone, apart from some more tangible interests such as employment, is [n]either ‘liberty’ [n]or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701. The plaintiff in Paul alleged a deprivation of liberty without due process of law after the circulation of flyers publicizing his conviction for shoplifting and labeling him an “active shoplifter.” Id. at 712. According to the Paul Court, because the plaintiff’s harm was not accompanied by the alteration of “a right or status previously recognized by state law,” there was no deprivation of a protectible liberty interest. Id. at 711-12.