KY should not put force of law behind Center for SafeSport blacklist
The United States' propensity for blacklists and watchlists has its roots in Kentucky. Commonwealth legislators should not deepen this legacy.
This Supreme Court term is the 50th anniversary of one of Kentucky’s most regrettable contributions to constitutional law. Kentucky lawmakers should bear its consequences in mind when they consider a proposed bill this session.
Edward C. Davis was a photographer for the Louisville Courier-Journal and Times. He was arrested in June 1971 for shoplifting, and pleaded not guilty in September. The charge was then “filed away with leave [to reinstate].”
Over a year later, the city of Louisville and Jefferson County police departments distributed their annual mugbook to local retailers ahead of the holiday shopping season. Davis’s name and mugshot was included, under the heading “Active Shoplifters.”
Purely by coincidence, a judge dismissed the charges against Davis a few days after the flyers went out.
But Davis’s fate was already sealed. His status as an “active shoplifter” made its way to his newsroom. His supervisor said he would not assign Davis to any projects involving local businesses, placing a low ceiling on the work he could do. Davis wrote later, “I was the only black working in the department, which made it extremely difficult for me to function. I suffered humiliation and ridicule.”
He resigned after a few months “to regain my full sanity and keep what little self-respect I had left.” But wherever he went, the listing was already there, obstructing his attempts at future employment.
The American Civil Liberties Union of Kentucky represented Davis in his suit against the Louisville and Jefferson County chiefs of police. Paul v. Davis reached the Supreme Court in 1975.
The Court acknowledged the devastation of the state branding Davis an active shoplifter. But losing his reptuation wasn’t enough. He would have had to suffer more, in some specific and judicially recognized manner, in order to sue for the violation of his due process rights. This became known as the “stigma-plus doctrine.”
Justice Brennan’s dissent recognized the license this out-of-thin-air legal standard gave government tribunals. They could, without consequence, declare people guilty of some offense “so long as the only official judgment pronounced was limited to the public condemnation and branding of a person as a Communist, a traitor, an ‘active murderer’... or any other mark that ‘merely’ carries social opprobrium.” The state now had a handy short cut around due process and justice: “publishing periodic lists of ‘active rapists,’ ‘active larcenists,’ or other ‘known criminals.’”
Substitute in terrorist (foreign or domestic), gang member, or sex offender, and we have our most prolific watchlists.
“[T]he ‘badge of infamy’ has serious consequences in its impact on no less than the opportunities open to him to enjoy life, liberty, and the pursuit of happiness.” - Justice William Brennan, in dissent.
Davis’ ordeal from Louisville to the Supreme Court left him “broke, without employment, emotionally sick and in a state of anxiety.” Thousands of Americans have ended up in the same situation after being unjustly branded by public or private watchlists. They do not just ban you from places or activities—they banish you from your social and professional communities.
An unprecedented bill that will come before the Kentucky legislature next term would give the force of law to a non-profit’s blacklist.
Representative Vanessa Grossl’s (R-Georgetown) BR 868 would permit the Kentucky Horse Park’s (KHP) Mounted Police to block or remove from the park anyone on the US Center for SafeSport’s Centralized Disciplinary Database.
This list is one of the most devastating manifestations of Justice Brennan’s foresight.
Congress gave the US Center for SafeSport, a 501(c)3, a scarcely constrained mandate in response to the Larry Nassar sex abuse scandal at USA Gymnastics. Congress ordered the Center to “publish and maintain a publicly accessible internet website that contains a comprehensive list of [banned] adults.”
Many of the people on this list had as much due process as Edward Davis did before he was branded an “active shoplifter”: none.
The Center can temporarily suspend someone from sport on the basis of an allegation alone: no finding of fact, no assessing of the credibility of the accusation. Just the accusation. Temporary suspensions can linger for years. Permanent sanctions result from procedures that are non-adversarial, lack standards for discovery and disclosure, have no neutral finder of fact, and are closed and sealed from the public. Appeals start with the accused paying a $5,000 fee. That’s not for their lawyer—that’s just the price of admission.
“The hardships resulting from this official stigmatization—loss of employment and educational opportunities, creation of impediments to professional licensing, and the imposition of general obstacles to the right of all free men to the pursuit of happiness—will often be as severe as actual incarceration, and the Court today invites and condones such lawless action by those who wish to inflict punishment without compliance with the procedural safeguards constitutionally required of the criminal justice system.” - Justice Brennan
If, like Davis, the charges against someone on the Centralized Disciplinary Database are dismissed, that person has to petition the Center for a new hearing, and no outcome is guaranteed. At least one coach is still blacklisted over three years after a judge dismissed his charges.
“I have neither the financial nor the emotional drive to continue fighting with this system any longer. And I ask, should I have to?” - Edward C. Davis III
Set aside this non-exhaustive overview of the Center’s constitutional shortcomings. Listed individuals are already banned from US Equestrian Federation events that take place at KHP. This bill would make the entire park—state property—off-limits, 24/7/365, enforced by men with guns on horseback with the power to arrest.
Grossl and KHP argue that someone on the Centralized Disciplinary Database could sneak in or get too close to a USEF event taking place at the park, and thereby pose a threat. But this is true for any sports venue. Someone could always be lurking across the street from a swim center, soccer complex, or baseball diamond.
“Today’s decision must surely be a short-lived aberration.” - final sentence of Justice Brennan’s dissent. If only.
This bill exploits the fact that the park is public property to transform a nominally private non-profit’s Congressionally mandated public blacklist into one state entity’s mass restraining order.
Davis’ quotes above were from his contribution to a law magazine’s article, “A ‘Keep Out’ Sign on the Courthouse Doors?” By rejecting BR 868, Kentucky legislators can put a “keep out” sign on any future impingements on Kentuckians’—and Americans’—rights to reputation and due process.
Related:
Defending Reputation from Defamation-by-Blacklist (The American Spectator)
Procedural Due Process and Reputational Harm: Liberty as Self-Invention (UC Davis Law Review)
Photo credit: Lisa Andres / Flickr, under CC BY 2.0.
