Title

Procedural Due Process and Reputational Harm: Liberty as Self-Invention

Document Type

Article

Publication Date

2009

Abstract

The question addressed in this Article is whether state-imposed reputational harm, in itself, should be deemed a deprivation of liberty sufficient to trigger procedural due process protection. In a sense, this is an odd question to ask. The Supreme Court, more than thirty years ago, clearly responded in the negative, requiring that state-caused stigmatic harm be accompanied by some more tangible loss for a procedural due process claim to arise. Despite much critical commentary in the wake of that decision, the Court has since not only affirmed but extended its stigma-plus doctrine. This Article suggests that the stigma-plus standard should be reconsidered for two reasons. First, the Court has been working with impoverished conceptions of reputation and liberty in constructing its stigmatic harm doctrine. This Article urges a closer connection between the values of reputation and liberty, suggesting that reputation be conceptualized as a critical site for autonomous identity formation. Liberty, in turn, here is characterized in intrinsic, as opposed to the Court’s instrumental, terms as comprising individual self-invention. Properly conceptualized, we can see that state-imposed reputational harm, in itself, deprives affected persons of the freedom maximally to define individual self-concepts and social identities. Second, the stakes are higher now than they have been in decades. The cases that gave rise to the stigma-plus doctrine involved the government labeling individuals as shoplifters and drunkards. Today, under the stigma-plus standard, the state is free to stigmatize its citizens as potential terrorists, gang members, sex offenders, child abusers, and prostitution patrons, to list just a few, all without triggering due process analysis. The final section of this Article addresses these contemporary contexts, applying the theories of reputation and liberty developed in prior sections and suggesting the need for reform of the Court’s reputational harm doctrine.