Intern Katie Farr contributed to this blog post.
Late last year, the Fourth Circuit Court of Appeals dismissed Dustin Dyer’s lawsuit against Transportation Security Administration (TSA) officers who ordered him to stop recording their pat-down search of his husband. The officers also ordered him to delete what he had already recorded. But the court, using a flawed legal doctrine that limits civil rights lawsuits, ruled that Dyer could not sue the officers for money damages even if they violated his First Amendment right to record on-duty government officials.
But there is no right without a remedy. Indeed, the Supreme Court once recognized that suing federal officials for money damages is “necessary relief” when “federally protected rights have been invaded.” In 1971, the high court in Bivens v. Six Agents approved a damages lawsuit against federal anti-drug officers who unlawfully raided a home. But since the 1980s, the Court has chipped away at the Bivens right to seek damages from federal officials. The Court recently blocked a lawsuit against a Customs and Border Patrol officer for violating First and Fourth Amendment rights.
We need money damages under Bivens to protect our civil rights—including the right to record and other digital rights—from the federal government. While a federal civil rights law protects our right to sue state government officials for money damages, no such statute exists for suing federal government officials. And the Supreme Court set, and the Fourth Circuit applied, a very high bar for suing under Bivens. You must show there are “no alternative remedies” and “no special factors counseling hesitation.” That is as vague and broad as it sounds, and the Fourth Ci
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