Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The traditional conception of “liberty” refers to freedom from physical restraint or confinement. Freedom from confinement is one aspect of the liberty interest that the Due Process Clause protects, but the Supreme Court has also construed the liberty interest to include other common law and statutory rights.1

A number of cases involving claimed liberty interests relate to prisoners’ rights. In those cases, the Court has often, but not always, been reluctant to find that a protected liberty interest exists unless the claim is based on a statutory right. For example, in Meachum v. Fano, the Court held that a state prisoner was not entitled to a fact-finding hearing when he was transferred to a different prison in which the conditions were substantially less favorable to him, because his initial valid conviction satisfied the due process requirement for depriving him of liberty and no state law guaranteed him the right to remain in the prison to which he was initially assigned.2 As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any set of facts, and no hearing was required. By contrast, in Vitek v. Jones, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a designated physician or psychologist finding that the prisoner “suffers from a mental disease or defect” and “cannot be given treatment in [the transferor] facility.” 3 Because the transfer was conditioned upon a “cause,” the Court held that fair procedures must be used to establish the facts necessary to show cause. The Vitek Court also held that the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease, which the Due Process Clause protected.4 Similarly, in cases involving revocation of parole or probation, the Court has recognized a liberty interest that is separate from a statutory entitlement and that can be taken away only through proper procedures.5

By contrast, in cases involving possible grants of parole, commutation of a sentence, or other proceedings that might expedite a prisoner’s release, the Court has held that, in the absence of some form of positive entitlement, a prisoner may be turned down without observance of procedures.6 Summarizing its prior holdings, the Court concluded in a 1989 case that two requirements must be present before a liberty interest is created in the prison context: a statute or regulation must contain “substantive predicates” limiting the exercise of official discretion, and there must be explicit “mandatory language” requiring a particular outcome if the substantive predicates are found.7 In subsequent cases, the Court limited the application of this test to circumstances where a state’s restraint on a prisoner’s freedom creates an “atypical and significant hardship.” 8

Outside the criminal context, the Court has expanded the concept of “liberty” beyond freedom from physical restraint to include various other protected interests, some statutorily created and some not.9 Thus, in Ingraham v. Wright, the Court unanimously agreed that school children had a liberty interest in freedom from wrongful or excessive corporal punishment, whether or not such interest was protected by statute.10 The Court explained that the liberty interest protected by the Due Process Clause “included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” 11

In some cases, the Court also appeared to expand the notion of liberty to include the right to be free from official stigmatization, finding that the threat of such stigmatization could in and of itself require due process.12 Thus, in the 1971 case Wisconsin v. Constantineau, the Court invalidated a statutory scheme in which persons could be labeled “excessive drinkers” without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served.13 Without discussing the source of the entitlement, the Court noted that the governmental action at issue impugned the individual’s “reputation, honor, or integrity.” 14

By contrast, in the 1976 case Paul v. Davis, the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in the loss of a statutory entitlement.15 In Davis, the police had included plaintiff’s photograph and name on a list of “active shoplifters” circulated to merchants without an opportunity for notice or hearing. The Court rejected the constitutional challenge, holding that state law “does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of [that] interest by means of damage actions.” 16 Thus, it appears that unless the government’s official defamation has a specific negative effect on an entitlement, such as the denial of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.

Footnotes

1

E.g., Allgeyer v. Louisiana, 165 U.S. 578, 588 (1897) ( “The ‘liberty’ mentioned in [the Fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” ).

2

427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976).

3

445 U.S. 480, 483 (1980).

4

Id. at 491–93.

5

Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).

6

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positively granted privileges of prisoners).

7

Ky. Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–63 (1989) (prison regulations listing categories of visitors who may be excluded, but not creating a right to have a visitor admitted, contain substantive predicates but lack mandatory language).

8

Sandin v. Conner, 515 U.S. 472, 484 (1995) (thirty-day solitary confinement not atypical in relation to the ordinary incidents of prison life); Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an atypical and significant hardship).

9

These procedural liberty interests are distinct from substantive liberty interests, which may not be infringed through any process absent a sufficient governmental interest. See Amdt14.S1.6.1 Overview of Substantive Due Process.

10

430 U.S. 651 (1977).

11

Id. at 673. Cases involving the family-related liberties discussed under substantive due process, as well as associational and privacy rights, may also involve liberty interests that require procedural due process protections. See Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father, with visitation rights, must be given notice and opportunity to be heard with respect to impending adoption proceedings); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father could not be presumed unfit to have custody of his children because his interest in his children warrants deference and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Little v. Streater, 452 U.S. 1 (1981); Lassiter v. Dep’t of Social Servs., 452 U.S. 18 (1981); Santosky v. Kramer, 455 U.S. 745 (1982).

12

Bd. of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419 U.S. 565 (1975).

13

400 U.S. 433 (1971).

14

Id. at 437. But see Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003) (posting of accurate information regarding sex offenders on state internet website does not violate due process as the site does not purport to label the offenders as presently dangerous).

15

424 U.S. 693 (1976).

16

Id. at 701–10. The Court distinguished Constantineau as being a “reputation-plus” case. That is, it not only stigmatized an individual but also “deprived the individual of a right previously held under state law—the right to purchase or obtain liquor in common with the rest of the citizenry.” Id. at 708. See also Roth, 408 U.S. at 573; Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 711–12 (1976). In a later case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978).