Backing Off <em>Bivens</em> and the Ramifications of This Retreat for the Vindication of First Amendment Rights

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that this raising of the barriers to recovery under the Constitution was not convinctingly supported, and enhanced the risk that the constitutional rights of some people, in some circumstances, will be so unenforceable as to violate constitutional minima.

In conjunction with this analysis of Chappell and Bush, the Article explores the constitutional theory that underlies Bivens actions. It suggests some specific questions courts ought to address when faced with the issue of whether a legislated remedial scheme should preclude a Bivens remedy. In particular, the Article proposes several matters courts ought to examine when judging whether a legislated remedial scheme is constitutionally adequate . Part II argues in favor of a money damage remedy under the Constitution for violations of first amendment rights.

A number of Bivens actions brought under the first amendment to the Constitution are then discussed to illustrate the possible implications of Chappell and Bush. The discussion shows how these recent Supreme Court decisions increase the risk that first amendment rights will be under-enforceable, even unconstitutionally so. Finally, the Article identifies first amendment Bivens cases which remain largely unaffected by Chappell and Bush.