Defending Reputation From Defamation-by-Blacklist

Free speech versus reputation battle in the government watchlist debate.

Most people don’t know they are on a government watchlist until they find that they cannot do something mundane like board a plane, purchase a firearm, or access their bank account. For most people, discovering this is dismaying and disconcerting — and, if other people learn about it, potentially defamatory.
The government’s easy propensity to place people on watchlists traces to the 1975 Supreme Court case of Paul v. Davis. Davis is a companion case to New York Times v. Sullivan. Both overhauled centuries of legal philosophy and precedent on the value of reputation, and each decision created a two-tier system at the expense of reputation.
Edward C. Davis III was a newspaper photographer whose name and face was among those listed as “Active Shoplifters” in a flyer that the Louisville Police Department circulated to local stores every December. Over a year earlier, Davis had pled not guilty to a shoplifting charge. The court subsequently “filed [it] away with leave to reinstate.” That is not a full dismissal, but it was the last Davis had heard of the charge until he found himself in the police department’s mugbook.
When coworkers learned that Davis was on the active shoplifter list, his boss “informed me that the shoplifting notice would impair my ability to perform my photographic duties. He felt that the company could not feel free to send me on any assignments that would require me to come in contact with local retail stores.”
Suffering “humiliation and ridicule,” Davis resigned about six months later “in order to regain my full sanity and keep what little self-respect I had left.” He found it difficult to find a new job, as the tag “Active Shoplifter” followed him to each interview.
The Supreme Court acknowledged in Davis that government listings stigmatize and interfere with the right to reputation of people on the lists.
However, rather than adhering to their precedent from only five years earlier, the Supreme Court chose to create a new standard to bar civil ...