Jill Dillard v. Rick Hoyt

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 17-3284
No. 17-3287
___________________________

Jill Dillard; Jessa Seewald; Jinger Vuolo; Joy Duggar

Plaintiffs - Appellees

v.

Kathy O’Kelley; Ernest Cate;
Rick Hoyt, in their individual and official capacities

Defendants - Appellants
____________

Appeals from United States District Court
for the Western District of Arkansas - Fayetteville
____________

Submitted: January 14, 2020
Filed: June 15, 2020
____________

Before SMITH, Chief Judge, LOKEN, COLLOTON, GRUENDER, BENTON,
KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges, En Banc.
____________

LOKEN, Circuit Judge, with whom COLLOTON, GRUENDER, BENTON,
ERICKSON, STRAS, and KOBES, Circuit Judges, join.

Jill Dillard, Jessa Seewald, Jinger Vuolo, and Joy Duggar (“Plaintiffs”) rose to
prominence as members of the cast of “19 Kids and Counting,” a television show
about Jim Bob Duggar, his wife Michelle, and their nineteen children in Washington
County, Arkansas. In 2015, the City of Springdale Police Department (“SPD”) and
the Washington County Sheriff’s Office (“WCSO”), responding to a tabloid’s request
under the Arkansas Freedom of Information Act (“FOIA”), Ark. Code § 25-19-101
et seq., released redacted copies of reports of a 2006 investigation into sexual
misconduct by the Duggars’ oldest child, Josh Duggar, which included interviews of
Plaintiffs, who were minors at the time. Despite redactions, social media users
identified Plaintiffs as the victims of Josh’s reported sexual abuse. The resulting
negative publicity brought about the show’s demise, and then, this lawsuit.

Plaintiffs sued the City, the County, and several of their employees, asserting
claims under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act, along with state
law tort claims for the tort of outrage and invasion of privacy. As relevant here,
Plaintiffs alleged that Springdale Police Chief Kathy O’Kelley, Springdale City
Attorney Ernest Cate, and WCSO Enforcement Major Rick Hoyt (“individual
defendants” or “Defendants”) violated Plaintiffs’ Fourteenth Amendment rights to
informational privacy by disclosing the redacted reports to the media. The district
court denied the individual defendants’ motions to dismiss the § 1983 claims based
on qualified immunity and the state law claims based on official immunity under Ark.
Code § 21-9-301.1 Defendants appealed; a panel of this court affirmed. We granted
Defendants’ petition for rehearing en banc of the panel’s qualified immunity ruling.
Reviewing de novo, we conclude that the asserted due process right to informational
privacy was not clearly established and therefore reverse the denial of qualified
immunity. Lyons v. Vaught, 781 F.3d 958, 960 (8th Cir. 2015) (jurisdiction and
standard of review). We otherwise reinstate the panel opinion.

1
The district court dismissed official capacity claims against the individual
defendants, claims against the City and County, and, in a separate Order, all claims
against the tabloid’s publishers.

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 I. Factual Allegations

Plaintiffs’ Complaint alleges that on December 7, 2006, the Arkansas State
Police (“ASP”) Child Abuse Hotline received an anonymous tip that Josh Duggar had
molested his younger sisters Jill, Jessa, Jinger, and Joy, along with another unnamed
individual, at various times in 2002 and 2003. SPD opened an investigation and
requested an “agency assist” from WCSO. An ASP investigator questioned Plaintiffs
about the assaults; they were promised their answers would remain confidential. A
WCSO detective interviewed Jim Bob and Michelle Duggar, who acknowledged the
allegations and identified the victims, location, and frequency of Josh’s sexual
misconduct. WCSO documented the Duggar interview in an Incident Report; SPD
summarized both the Duggar and sibling interviews in an Offense Report. Based on
the interviews, SPD submitted an affidavit to the Washington County Family in Need
of Services Division and the Washington County Prosecutor’s Office. No criminal
charges were filed, nor were the allegations made public.

The Complaint further alleges that on May 15, 2015, a tabloid called In Touch
Weekly submitted FOIA requests to the SPD and the WCSO, seeking files related to
Jim Bob Duggar, Michelle Duggar, Josh Duggar, and multiple addresses. The request
stated that In Touch had reason to believe the agencies had filed reports regarding the
sexual assaults. The Arkansas FOIA required a response by May 20. On May 19,
before SPD or WCSO responded, In Touch Weekly published an online article titled,
“‘19 Kids and Counting’ Son Named in Underage Sex Probe.” The article stated that
“multiple sources who have seen the police report and are familiar with the case” told
the tabloid that police had investigated an alleged sexual assault. “Josh was brought
into the Arkansas State Police by his father,” after Jim Bob “caught [Josh] leaving a
young girl’s bedroom and ‘learned something inappropriate happened.’” “Rumors
about Josh have swirled for years,” the article continued; “In Touch’s investigation
has uncovered the secret he has been hiding.”

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 According to the Complaint, appellants O’Kelley and Cate “directed, oversaw,
and approved” SPD’s FOIA response. Officials suspected that employees were
leaking details of the investigation to the media; O’Kelley worried that her
department would “soon end up in the tabloids” and become the target of “worldwide
media attention.” Without seeking guidance from the Arkansas Municipal League
or the City’s child services department, O’Kelley and Cate decided to release a
redacted Offense Report in response to the FOIA request and “rushed to prepare” the
report. Appellant Hoyt “organized, oversaw, and approved” WSCO’s redactions,
while County Attorney Steve Zega “oversaw, counseled, and approved” the release
of the report. On the evening of the May 20 deadline, O’Kelley received the redacted
SPD Offense Report and sent it to In Touch Weekly and a local news organization.
The next day, Hoyt and Zega directed WCSO employees to mail the redacted Incident
Report to In Touch Weekly.

The redactions did not prevent identification of Plaintiffs as four of Josh’s
victims. Both reports included Jim Bob and Michelle Duggar’s names, their current
and former addresses, and “other personal details” about each individual victim. The
Offense Report contained “full descriptions” of the victim interviews, and the
Complaint alleges that Plaintiffs were “obviously identifiable.” The Incident Report
“expressly identified one of Josh’s victims as his then 5-year-old sister.” In response
to a request from Cate, the Arkansas Municipal League advised that Arkansas law
prohibited disclosing the identity of sex crime victims. O’Kelley then asked In Touch
Weekly to refrain from using Jim Bob and Michelle Duggar’s names and accept a
different version of the SPD report. Instead, the tabloid published the original
Offense Report with an article titled, “Bombshell Duggar Police Report: Jim Bob
Duggar Didn’t Report Son Josh’s Alleged Sex Offenses For More Than A Year,” and
reporting that “explosive new information is contained in a Springdale, Ark. police
report obtained by In Touch magazine.” The article revealed details of the sexual
assaults, including that some occurred while the victims were sleeping, one victim
was fourteen at the time, and the victims forgave Josh after he apologized.

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 The Complaint alleges a “public backlash” against the disclosures. Based on
interview details, social media users identified Plaintiffs as the victims. Some
commentators expressed sympathy, others “chastised [Plaintiffs’] personal decision
to forgive their brother,” while others “reveled in the ad hoc disclosure of the lurid
details” and subjected Plaintiffs to “spiteful and harsh comments and harassment.”
In response to Joy Duggar’s motion, a state court judge ordered the Offense Report
expunged from the public record, ordered all copies destroyed, and ruled that
interviews and information about the sexual assaults were not subject to FOIA
disclosure. Undeterred, In Touch Weekly continued to post copies of the Offense
Report and expanded its coverage of the scandal. A June 3 article highlighted a “new
report . . . from the Washington County Sheriff’s Office,” which had “fewer
redactions” and “show[ed] the extent of Josh’s abuse.” A June 15 article quoted an
“insider” as saying, “The four Duggar girls ‘forgave’ Josh for his sins, but that’s not
how you get over sexual abuse.” The Complaint alleges that publicizing their trauma
subjected Plaintiffs and their families “to extreme mental anguish and emotional
distress.”

II. The Federal Constitutional Claims

A. The issue presented by this interlocutory appeal is whether individual
Defendants O’Kelley, Cate, and Hoyt are entitled to qualified immunity from
Plaintiffs’ § 1983 damage claims. Qualified immunity shields public officials from
liability for civil damages if their conduct did not “violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has repeatedly
“stressed the importance of resolving immunity questions at the earliest possible stage
in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). To defeat a motion to
dismiss based on qualified immunity, Plaintiffs must “plead[] facts showing (1) that
the official violated a statutory or constitutional right, and (2) that the right was

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‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quotation omitted).

Qualified immunity “protects all but the plainly incompetent or those who
knowingly violate the law.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotation
omitted). Thus, “[a] clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Id. (quotation omitted). The Supreme Court “has repeatedly told courts . . . not to
define clearly established law at a high level of generality.” Kisela v. Hughes, 138
S. Ct. 1148, 1152 (2018) (quotation omitted). Rather, we look for a controlling case
or “a robust consensus of cases of persuasive authority.” Al-Kidd, 563 U.S. at 741-42
(quotation omitted). There need not be a prior case directly on point, but “existing
precedent must have placed the statutory or constitutional question beyond debate.”
Id. at 741.

B. This case presents these recurring qualified immunity issues in an unusual
context. Often, controlling precedent establishes that an alleged constitutional right
exists, but its parameters are “inapplicable or too remote,” or their application to the
facts is unclear. See, e.g., Kisela, 138 S. Ct. at 1153. In other cases, the right’s
parameters are unclear because there is no controlling case, and courts in other
jurisdictions may be “sharply divided” on the issue. See, e.g., Stanton v. Sims, 571
U.S. 3, 6 (2013). Here, by contrast, a Supreme Court decision raises the threshold
question whether the right Defendants are alleged to have violated even exists.

In Whalen v. Roe, the Supreme Court stated that its prior cases “sometimes
characterized as protecting ‘privacy’ have in fact involved . . . the individual interest
in avoiding disclosure of personal matters.” 429 U.S. 589, 598-99 (1977) (footnote
omitted). The Court then upheld a New York statute requiring the State Department
of Health to collect records identifying persons who acquired certain prescription

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drugs, concluding that “this record does not establish an invasion of any right or
liberty protected by the Fourteenth Amendment.” Id. at 606. The Court cautioned:

We therefore need not, and do not, decide any question which might be
presented by the unwarranted disclosure of accumulated private data --
whether intentional or unintentional -- or by a system that did not
contain comparable security provisions.

Id. at 605-06. That same year, the Court decided Nixon v. Administrator of General
Services, which noted its decision in Whalen, weighed “any intrusion [on privacy] . . .
against the public interest,” and held that the Presidential Recordings and Materials
Preservation Act “does not unconstitutionally invade [former President Nixon’s] right
of privacy.” 433 U.S. 425, 457-58 (1977).

Despite the Court’s inconclusive acknowledgment of a constitutional right it
held not violated, a majority of the courts of appeals interpreted Whalen and Nixon
as recognizing a constitutional right to the privacy of medical, sexual, financial, and
other categories of highly personal information, grounded in the Fourteenth
Amendment right to substantive due process. See Wolfe v. Schaefer, 619 F.3d 782,
785 (7th Cir. 2010) (collecting cases). Panels of this court followed suit. As we said
in affirming the denial of relief in Alexander v. Peffer, “In Whalen . . . the Supreme
Court determined that one component of the protection of the right to privacy
embodied in the fourteenth amendment is an individual’s interest in avoiding
disclosures of personal matters.” 993 F.2d 1348, 1349 (8th Cir. 1993).

More than thirty years after Whalen and Nixon, the Supreme Court returned to
the issue in NASA v. Nelson, 562 U.S. 134 (2011). It again rejected a constitutional
privacy challenge, this time to mandatory background checks for contractors at
NASA’s Jet Propulsion Laboratory. See id. at 159. The Court declined to provide
a “definitive answer” to whether there is a constitutional right to informational

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privacy, because the government as petitioner had not presented the issue for decision
and it was not briefed and argued. See id. at 147 n.10. Rather, the majority
concluded, “[a]s was our approach in Whalen, we will assume for present purposes
that the Government’s challenged inquiries implicate a privacy interest of
constitutional significance.” Id. at 147 (emphasis added). Two Justices took issue
with this approach, arguing that “[a] federal constitutional right to ‘informational
privacy’ does not exist,” and it was “unfathomable” why Whalen and Nixon’s
“passing, barely explained reference to . . . an unenumerated right that they held to
be not applicable . . . should be afforded stare decisis weight.” Id. at 160, 164
(Scalia, J., concurring in the judgment).

Although Nelson left the issue unresolved, it confirmed that our court and other
circuits erred in reading inconclusive statements in Whalen and Nixon as Supreme
Court recognition of a substantive due process right to informational privacy. In this
case, at oral argument before our en banc court, Defendants urged us to hold that the
alleged right does not exist. But they did not raise this issue in the district court,
before the panel, or in their petition for rehearing en banc. Nor did Plaintiffs address
the issue prior to responding at oral argument. In similar circumstances, seven
Supreme Court Justices declined to decide this constitutional issue in Nelson,
observing that, “Particularly in cases like this one, where we have only the scarce and
open-ended guideposts of substantive due process to show us the way, the Court has
repeatedly recognized the benefits of proceeding with caution.” Id. at 147 n.10
(cleaned up). The Court in Nelson opted to “assume, without deciding, that the
Constitution protects a privacy right of the sort mentioned in Whalen and Nixon.”
Id. at 138. However, even if the right is assumed to exist, in reviewing the denial of
qualified immunity, Nelson raises an essential question: whether a right the Supreme
Court has only assumed may exist, and this court has never held to be violated, can
be a clearly established constitutional right.

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 C. Although Whalen and Nixon did not involve alleged wrongful disclosures
of private information, a number of our pre-Nelson decisions extended their
interpretation of those decisions to disclosures of “inherently private” information
that is “either a shocking degradation or an egregious humiliation . . . or a flagrant
breach of a pledge of confidentiality which was instrumental in obtaining the personal
information.” Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996), quoting Peffer, 993
F.2d at 1350 (alteration omitted). However, although we considered a wide variety
of disclosures, in each case we concluded that the alleged right had not been violated.
See Cooksey v. Boyer, 289 F.3d 513, 517 (8th Cir. 2002) (disclosure of police chief’s
treatment for stress); Riley v. St. Louis Cty. of Mo., 153 F.3d 627, 631 (8th Cir. 1998)
(release of photo of son’s body following suicide), cert. denied, 525 U.S. 1178
(1999); Eagle, 88 F.3d at 624-27 (disclosure of guilty plea already in public domain);
Wade v. Goodwin, 843 F.2d 1150, 1151 n.2, 1153 (8th Cir.) (disclosure of list of
“survivalists” denoting membership in organizations like the Ku Klux Klan), cert.
denied, 488 U.S. 854 (1988). Indeed, in Eagle, we reversed the denial of qualified
immunity, noting “that the exact boundaries of this right are, to say the least, unclear.”
88 F.3d at 625. To the extent these cases read Whalen and Nixon as recognizing the
right to informational privacy, Nelson makes clear they were wrong to do so. The
disclosures in this case occurred years after the decision in Nelson, and we have not
revisited the issue. The resulting legal uncertainty surely means the alleged
constitutional right to informational privacy is not “beyond debate” in the Eighth
Circuit. Al-Kidd, 563 U.S. at 741.

The Supreme Court applied this principle in Reichle v. Howards, where
plaintiffs asserted an alleged First Amendment right to be free of retaliatory arrest,
despite probable cause to arrest, arguing two Tenth Circuit cases clearly established
a right the Supreme Court had never recognized. 566 U.S. 658, 664-66 (2012). The
Court reversed the denial of qualified immunity, concluding the Tenth Circuit cases
did not clearly establish the right at issue because an intervening Supreme Court
decision had abrogated one and cast significant doubt on the other. See id. at 666-70.

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“As we have previously observed,” the Court explained, “[i]f judges thus disagree on
a constitutional question, it is unfair to subject police to money damages for picking
the losing side of the controversy.” Id. at 669-70 (quotation omitted). Under Reichle,
therefore, the uncertain status of the right to informational privacy means that
Defendants are entitled to qualified immunity. If a right does not clearly exist, it
cannot be clearly established.

III. The State Law Claims

Defendants’ interlocutory appeal also challenged the district court’s denial of
qualified and statutory immunity from Plaintiffs’ state law tort claims. The panel
agreed that we review state law claims on interlocutory appeal to determine if the
district court “properly denied a state entity or its agent immunity from suit.” The
panel concluded, based on its analysis of the Arkansas official immunity statute, Ark.
Code § 21-9-301(a), that Defendants “are not entitled to statutory or qualified
immunity on [Plaintiffs’] state law claims at this stage of the proceedings.”

As they conceded at oral argument, Defendants petitioned for rehearing en
banc only of the panel’s denial of qualified immunity from Plaintiffs’ § 1983 federal
constitutional claims. Accordingly, Section II.B. of the panel opinion is reinstated.
See Szabla v. City of Brooklyn Park, MN, 437 F.3d 1289 (8th Cir. 2006) (order
reinstating panel opinion as to issues not raised in the petition for rehearing en banc).
The district court of course remains free to revisit its initial ruling on the immunity
issue, or any other aspect of the state law claims, at a later stage of the proceedings.

IV. Conclusion

For the foregoing reasons, the order of the district court dated September 29,
2017, is affirmed in part and reversed in part, and the case is remanded for
proceedings not inconsistent with this opinion.

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COLLOTON, Circuit Judge, concurring.

I join the opinion of the court and submit these observations in response to the
separate opinions that follow. Both opinions take the view that court decisions
rejecting a plaintiff’s claim of constitutional right can clearly establish a
constitutional right for the benefit of a future plaintiff. The court properly declines
to adopt that reasoning.

The judicial power under Article III of the Constitution is limited to resolving
cases and controversies. When a court holds that a plaintiff’s allegations do not
establish a violation of a constitutional right, the case is resolved. The judges have
no authority to bind other judges in the future to rule that some other plaintiff
presenting some other set of facts would demonstrate a violation of the Constitution.
“It is a maxim not to be disregarded, that general expressions, in every opinion, are
to be taken in connection with the case in which those expressions are used. If they
go beyond the case, they may be respected, but ought not to control the judgment in
a subsequent suit when the very point is presented for decision.” Cohens v. Virginia,
19 U.S. 264, 399-400 (1821). So when panels of this court in Alexander v. Peffer,
993 F.2d 1348 (8th Cir. 1993), Eagle v. Morgan, 88 F.3d 620 (8th Cir. 1996), and
Cooksey v. Boyer, 289 F.3d 513 (8th Cir. 2002), determined that there was no
violation of a constitutional right, they could not in dicta create or recognize a clearly
established right for purposes of applying the doctrine of qualified immunity in a
future case. Judges do not increase their power by uttering dictum with an air of
certitude.

“A judge’s power to bind is limited to the issue that is before him; he cannot
transmute dictum into decision by waving a wand and uttering the word ‘hold.’”
United States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring).
If there is no decision that a constitutional right exists, then the right is not clearly
established, and officials do not have fair notice about it. In the context of qualified

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immunity, therefore, “clearly established law comes from holdings, not dicta,”
Morrow v. Meachum, 917 F.3d 870, 875 (5th Cir. 2019), with the likely exception of
decisions that declare a constitutional violation in a concrete case before granting
qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (discussing
“development of constitutional precedent” through the discretionary first step of
qualified immunity analysis).

This case leaves undisturbed our precedent that a prior holding of the Eighth
Circuit is sufficient to recognize a clearly established right. E.g., Chestnut v.
Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020); cf. City of Escondido v. Emmons, 139
S. Ct. 500, 503 (2019) (per curiam) (assuming without deciding that a court of
appeals decision may constitute clearly established law for purposes of qualified
immunity). But in discerning a clearly established substantive due process right to
informational privacy, the panel decision in this case mistakenly attributed the force
of binding law to dicta in Peffer, Eagle, and Cooksey. See Dillard v. City of
Springdale, 930 F.3d 935, 943-44 (8th Cir. 2019). Whether some other disclosure of
information that amounted to a “shocking degradation” or “egregious humiliation”
would have implicated the concept of substantive due process was unnecessary to the
decision or result in those cases. It was sufficient for this court in Peffer, Eagle, and
Cooksey to assume without deciding that a disclosure of matters more personal would
violate the Constitution, just as it was sufficient for the Supreme Court to do so in
Whalen v. Roe, 429 U.S. 589, 599, 605 (1977), and NASA v. Nelson, 562 U.S. 134,
147 (2011). Such an assumption does not clearly establish a constitutional right. See
Nelson, 562 U.S. at 147 n.10.

Decisions of four other circuits denying qualified immunity in this context
relied on precedent of that circuit deciding in an actual case that a constitutional right
to informational privacy existed and was sufficiently pleaded or proved. See Sealed
Plaintiff No. 1 v. Farber, 212 F. App’x 42, 43 (2d Cir. 2007) (citing Doe v. City of
New York, 15 F.3d 264, 267 (2d Cir. 1994)); Anderson v. Blake, 469 F.3d 910, 914

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(10th Cir. 2006) (citing Sheets v. Salt Lake County, 45 F.3d 1383, 1387-88 (10th Cir.
1995)); Sterling v. Borough of Minersville, 232 F.3d 190, 192 (3d Cir. 2000) (citing
Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir. 2000), and Fraternal Order of Police v.
City of Philadelphia, 812 F.2d 105, 118 (3d Cir. 1987)); James v. City of Douglas,
941 F.2d 1539, 1540-41 (11th Cir. 1991) (citing Fadjo v. Coon, 633 F.2d 1172, 1175
(5th Cir. 1981)). Whatever the merit of those underlying constitutional rulings, cf.
Nelson, 562 U.S. at 147 & n.10; id. at 159-68 (Scalia, J., concurring in the judgment),
the qualified immunity decisions do not support the view that a prior decision
rejecting a plaintiff’s claim of right can create a clearly established right. Denius v.
Dunlap, 209 F.3d 944 (7th Cir. 2000), did rely on dicta from prior decisions of that
court, so it was likely incorrect on this view, as there should be no exception even for
Posnerian dicta. See id. at 956-57 (citing Anderson v. Romero, 72 F.3d 518, 522 (7th
Cir. 1995)).2

The larger point about the misuse and misunderstanding of judicial dicta was
well stated by Judge Leval in his Madison Lecture from October 2005. The thesis
can be recounted succinctly:

We judges regularly undertake to promulgate law through utterance of
dictum made to look like a holding—in disguise, so to speak. When we
do so, we seek to exercise a lawmaking power that we do not rightfully
possess. Also, we accept dictum uttered in a previous opinion as if it
were binding law, which governs our subsequent adjudication. When
we do so, we fail to discharge our responsibility to deliberate on and
decide the question which needs to be decided.

2
In a different context, this court in Putnam v. Keller, 332 F.3d 541, 547 (8th
Cir. 2003), misdescribed an aspect of Coleman v. Reed, 147 F.3d 751 (8th Cir. 1998),
as a “holding,” but the denial of qualified immunity in Putnam was grounded in an
actual holding of this court in Winegar v. Des Moines Independent Community School
District, 20 F.3d 895, 899-902 (8th Cir. 1994).

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Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L.
Rev. 1249, 1250 (2006). Given the conflicting views exhibited in this case about how
binding law is decreed, and how clearly established rights are recognized, the Leval
thesis and Chief Justice Marshall’s teaching in Cohens warrant the renewed attention
of the court.

GRASZ, Circuit Judge, with whom SMITH, Chief Judge, joins, concurring in part
and concurring in the result.

The constitutional right to informational privacy in the Eighth Circuit is dead.3
Some believe it never lived. In any event, in this age of digital information, where
the government may possess massive amounts of personal data, the protection of
twenty-two million people from wrongful disclosure of intimately private information
by government officials now lies squarely in the hands of the state legislatures in
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.4
Perhaps that is where it belonged from the start, given that the federal constitution is
silent on the matter and the United States Supreme Court has yet to conclude that a
constitutional right to informational privacy exits. See NASA v. Nelson, 562 U.S.
134, 138 (2011) (“We assume, without deciding, that the Constitution protects a right
to [informational] privacy . . . .”) (emphasis added).

While the demise of informational privacy as a constitutional right in this
circuit may be appropriate, we should at least recognize this was not an academic

3
Although a litigant might, in theory, still attempt a facial challenge to a statute
or regulation, or seek to enjoin the prospective release of information, the retroactive
enforcement of any right to informational privacy under 42 U.S.C. § 1983 is now
effectively precluded.
4
The protection of informational privacy is now left to the state legislatures in
the absence of any relevant state constitutional provisions.

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exercise to the plaintiffs. The court has concluded that the Arkansas public officials
here, who are alleged to have callously revealed intimate and humiliating personal
information of young sexual assault victims to a tabloid under highly suspicious
circumstances, are exempt from liability because of qualified immunity.5 Ante at 10.
The court does so, in part, based on the proposition that a constitutional right not
definitively recognized by the Supreme Court cannot be “clearly established” for
purposes of qualified immunity analysis. Ante at 9–10. While this reasoning may
have facial appeal, it is simply not true that a right established in circuit precedent
cannot be “clearly established” for purposes of qualified immunity even in the
absence of definitive Supreme Court precedent. Indeed, many other circuit courts
would likely be quite surprised by this holding.6 Regardless, today’s decision means
future litigants have no recourse in this circuit under 42 U.S.C. § 1983 for
informational privacy violations.

I remain of the view that the panel below was bound to follow this court’s
opinions in Cooksey v. Boyer, 289 F.3d 513, 515–16 (8th Cir. 2002), Eagle v.
Morgan, 88 F.3d 620, 625 (8th Cir. 1996), and Alexander v. Peffer, 993 F.2d 1348,
1350 (8th Cir. 1993), in which we recognized and narrowly defined the right to

5
Like informational privacy, qualified immunity is a textually invisible right.
6
Several of our sister circuits have denied qualified immunity while finding the
right to informational privacy was clearly established. See Anderson v. Blake, 469
F.3d 910, 912, 917 (10th Cir. 2006) (video of rape victim’s assault disclosed by
police officer); Sterling v. Borough of Minersville, 232 F.3d 190, 192 (3d Cir. 2000)
(threat to disclose arrestee’s sexual orientation); Denius v. Dunlap, 209 F.3d 944,
956–57 (7th Cir. 2000) (medical information of a teacher); James v. City of Douglas,
Georgia, 941 F.2d 1539, 1540–41 (11th Cir. 1991) (police officer viewed and
allowed other people to view video of informant and suspect engaging in sexual
activity). Other circuits have recognized the right and found violations. See Tucson
Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) (medical records); Doe
v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994) (recognizing the constitutional
right to confidentiality of a HIV diagnosis).

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informational privacy.7 However, I agree with the en banc court that the foundation

7
The initial concurring opinion does not alter this view by calling the
recognition of informational privacy in these cases “dicta.” To be sure, the general
propositions and maxims about judicial power and dicta presented in the initial
concurring opinion are not subject to question. But their asserted application in the
present context is. First of all, whether a case or controversy exists to support the
exercise of judicial power under Article III is a threshold issue. I fail to see how this
is affected by whether a constitutional right is clearly established for purposes of
granting qualified immunity. Qualified immunity does not dissolve the claim or
deprive the court of judicial power. It is an affirmative defense. Second, there is no
dispute that obiter dictum is not binding law. “Obiter dictum” is “[a] judicial
comment made while delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential . . . .” Obiter Dictum, Black’s Law
Dictionary (11th ed. 2019); accord Sanzone v. Mercy Health, 954 F.3d 1031, 1039
(8th Cir. 2020) (using the same definition to define dicta). However, the notion that
recognition of a constitutional right, analytical framework, or legal test is per se dicta
in a case where a violation of a constitutional right is not found to have been
successfully alleged sweeps too broadly. See Seminole Tribe of Florida v. Florida,
517 U.S. 43 (1996) (“When an opinion issues for the Court, it is not only the result
but also those portions of the opinion necessary to that result by which we are
bound.”). In my view, a court must apply some legal standard to determine whether
a purported constitutional right was violated. The legal standard applied is not
“beyond the case.” It is essential to its determination. In this regard, I am aware of
no precedent standing for the proposition that the legal standard employed by an
appellate court is not part of its holding unless it also finds that a violation of that
standard has occurred. Consider, for example, Terry v. Ohio, 392 U.S. 1, 27–30
(1968), in which the Court concluded the Fourth Amendment protected against police
frisks absent reasonable suspicion, while simultaneously finding the officer did not
violate the Fourth Amendment. Or consider Strickland v. Washington, 466 U.S. 668,
687–701 (1984), in which the Court set forth the legal standard for ineffective
assistance of counsel, yet found the legal representation in question did not violate
the defendant’s Sixth Amendment rights. See also Putnam v. Keller, 332 F.3d 541,
547 (8th Cir. 2003) (affirming denial of qualified immunity based on the standard
articulated in Coleman v. Reed, 147 F.3d 751, 755 (8th Cir. 1998), in which we found
no violation of a constitutional right). In the present case, the first four federal judges
to review the plaintiffs’ claims all read our circuit’s precedent as recognizing the right

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of those cases is gone. And today’s decision has effectively negated them. Ante at
9 (“To the extent these cases read Whalen and Nixon as recognizing the right to
informational privacy . . . they were wrong to do so.”). With no right to informational
privacy recognized in this circuit, the appellants cannot, as a matter of law, prevail
against the assertion of qualified immunity. They must instead look to state law for
relief.

KELLY, Circuit Judge, concurring in part and dissenting in part.

In 2006, Plaintiffs provided private and intimate details regarding their
childhood sexual abuse to government officials under a promise of confidentiality.
More than eight years later, government officials broke that promise and disclosed
this sensitive information to a tabloid without Plaintiffs’ consent. Because I believe
this violated Plaintiffs’ clearly established right to privacy, I respectfully dissent.

The issue in this appeal is whether a reasonable government official in the
Eighth Circuit would have understood that disclosing to a tabloid private information
regarding childhood sexual abuse would violate the constitutional right to privacy.
See Anderson v. Creighton, 483 U.S. 635, 640 (1987). This raises two basic
questions: (1) whether this court’s caselaw, prior to NASA v. Nelson, 562 U.S. 134
(2011), provided fair notice that publicly disclosing this information would violate
the constitutional right to privacy; and (2) if so, whether a government official could
have reasonably believed that Nelson had undermined that caselaw.

I agree with the district court and the panel that our pre-Nelson caselaw clearly
established that the government’s disclosure of this sensitive information would
violate the constitutional right to privacy. This court has repeatedly stated, in no
uncertain terms, that “the right to privacy embodied in the fourteenth amendment”

to informational privacy. They were not wrong.

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protects “an individual’s interest in avoiding disclosures of personal matters.”
Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir. 1993); see also Cooksey v. Boyer,
289 F.3d 513, 515 (8th Cir. 2002); Riley v. St. Louis Cty. of Mo., 153 F.3d 627, 631
(8th Cir. 1998); Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996); Wade v.
Goodwin, 843 F.2d 1150, 1153 (8th Cir. 1988). Following other circuits, we have
held that to violate an individual’s constitutional right of privacy “the information
disclosed must be either a shocking degradation or an egregious humiliation of her
to further some specific state interest, or a flagrant bre[a]ch of a pledge of
confidentiality which was instrumental in obtaining the personal information.”
Peffer, 993 F.2d at 1350 (citing Davis v. Bucher, 853 F.2d 718, 721 (9th Cir. 1988)).

Until this case, we had not been presented with a factual scenario that satisfied
this exacting standard.8 But in my view, we had provided fair notice to government
officials in the Eighth Circuit that the public disclosure of “highly personal matters
representing the most intimate aspects of human affairs,” that is “either a shocking
degradation or an egregious humiliation . . . , or a flagrant breach of a pledge of
confidentiality,” violates the constitutional right to privacy. See Eagle, 88 F.3d at 625
(cleaned up). As a result, government officials in the Eighth Circuit are not entitled
to qualified immunity for such disclosures. See Hope v. Pelzer, 536 U.S. 730, 741
(2002) (explaining that the clearly established test focuses on whether officials have
“fair warning” that their conduct is unconstitutional).

8
However, we had endorsed other circuits’ decisions that certain disclosures
violated the right to privacy. For example, in Eagle, 88 F.3d at 625, we cited with
approval Sheets v. Salt Lake Cty., 45 F.3d 1383, 1387–88 (10th Cir. 1995)
(concluding that the husband of a murder victim stated a cognizable right-to-privacy
claim based on the disclosure of excerpts from his wife’s diary), and York v. Story,
324 F.2d 450, 455–56 (9th Cir. 1963) (deciding, 14 years before Whalen and Nixon,
that photographing appellant’s nude body, over her objection and for no legitimate
law-enforcement purpose, and distributing the photos after telling appellant they had
been destroyed, “constituted an arbitrary intrusion upon the security of her privacy,
as guaranteed to her by the Due Process Clause of the Fourteenth Amendment”).

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 Four judges have decided that Plaintiffs’ constitutional right against the
disclosure of this information was clearly established. The district court reasoned that

taking the facts alleged in the Complaint as true, any reasonable person
in the position to make these disclosures would have understood that
these disclosures would be published, would cause a national scandal,
would be a “shocking degradation” or “egregious humiliation” for the
Plaintiffs, that the Plaintiffs had a “legitimate expectation” of
confidentiality in these materials, and that disclosing these materials
would therefore violate the Plaintiffs’ constitutional right to privacy.

Dillard v. City of Springdale, 5:17-CV-5089, 2017 WL 4392049, at *7 (W.D. Ark.
Sept. 29, 2017). A unanimous panel of this court agreed, concluding that:

The particular facts alleged here are not near the periphery of the right
to privacy but at its center. Certainly, allegations of incestuous sexual
abuse implicate “the most intimate aspects of human affairs” and are
“inherently private.” The content and circumstances of these disclosures
do not just meet the standard of “shockingly degrading or egregiously
humiliating,” they illustrate them. And releasing insufficiently redacted
reports detailing minors’ sexual abuse to a tabloid, notwithstanding
promises that these reports would remain private, is “a flagrant breach
of a pledge of confidentiality.”

Dillard v. City of Springdale, 930 F.3d 935, 949 (8th Cir. 2019) (cleaned up).

These decisions are well-supported. Other courts have similarly concluded that
a reasonable government official would have notice that the constitutional right to
privacy protects against the government’s disclosure of the details of sexual abuse.
See Sealed Plaintiff No. 1 v. Farber, 212 F. App’x 42, 43 (2d Cir. 2007) (affirming
the denial of qualified immunity and noting that “a person’s status as a juvenile sex
abuse victim is clearly the type of ‘highly personal’ information that we have long
recognized as protected by the Constitution from governmental dissemination”);

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Anderson v. Blake, 469 F.3d 910, 914–18 (10th Cir. 2006) (affirming the denial of
qualified immunity because plaintiff had a constitutionally protected privacy interest
in a rape video and was not required, at the motion-to-dismiss stage, to disprove every
possible compelling interest the government might assert); Bloch v. Ribar, 156 F.3d
673, 685–87 (6th Cir. 1998) (concluding that “a rape victim has a fundamental right
of privacy in preventing government officials from gratuitously and unnecessarily
releasing the intimate details of the rape where no pen[o]logical purpose is being
served” and stating that, as of September 1998, public officials in the Sixth Circuit
were “on notice that such a privacy right exists”); Stafford-Pelt v. California, No.
C-04-00496, 2005 WL 1457782, *8–11 (N.D. Cal. June 20, 2005) (denying qualified
immunity because plaintiff had plausibly alleged that disclosing partially redacted
reports detailing her allegations of sexual abuse against her half-brother violated her
clearly established right to privacy). I believe our pre-Nelson precedent dictates this
same result.

The question then becomes whether our precedent was undermined, such that
the rule in this circuit would not have been clear to a reasonable official, by the
Supreme Court’s decision in Nelson. In that case, the Court “assume[d], without
deciding, that the Constitution protects a privacy right of the sort mentioned in
Whalen and Nixon.” Nelson, 562 U.S. at 138. And it explained that, contrary to the
interpretation adopted by most circuits, this was “the same approach . . . the Court
took more than three decades ago in Whalen and Nixon.” Id. at 147 n.10.

In the court’s view, “Nelson raises an essential question: whether a right the
Supreme Court has only assumed may exist, and this court has never held to be
violated, can be a clearly established constitutional right.” Ante at 8. Relying on
Reichle v. Howards, the court answers this question in the negative, reasoning that
“the uncertain status of the right to informational privacy means that Defendants are
entitled to qualified immunity.” See id. at 9–10 (citing Reichle, 566 U.S. 658,
664–66 (2012)). I disagree.

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 In Reichle, the Supreme Court decided that it was not clearly established in the
Tenth Circuit that a retaliatory arrest could violate the First Amendment even if the
arrest was supported by probable case. See 566 U.S. at 663. The Court reasoned that,
although there was Tenth Circuit caselaw to this effect, a reasonable officer could
have believed that caselaw had been abrogated by the Court’s subsequent decision
in Hartman v. Moore, 547 U.S. 250 (2006), which reached the opposite conclusion
regarding retaliatory prosecutions. See Reichle, 566 U.S. at 663. The Court
explained that most circuits had treated retaliatory arrest and prosecution claims
similarly before Hartman, that it had granted certiorari in Hartman to resolve a circuit
split pertaining to both retaliatory arrests and prosecutions, that much of the rationale
in Hartman applied to both retaliatory arrests and prosecutions, and that several
circuits had decided that Hartman’s no-probable-cause requirement extended to
retaliatory arrests. Id. at 667–68.

I do not agree that Nelson’s effect on our right-to-privacy caselaw is similar to
Hartman’s effect on the Tenth Circuit’s retaliatory-arrest caselaw. Unlike Hartman,
which was intended to resolve a circuit split and abrogate contrary circuit authority,
Nelson purported to leave the state of the law intact. See id. at 147 & n.10. The
Court expressly acknowledged that, after Whalen and Nixon, different circuits had
adopted different interpretations of when the disclosure of private information by
government officials would violate the right to privacy, and the Court declined to
decide which circuit’s caselaw was correct. See Nelson, 562 U.S. at 146–47 & n.9.9

9
Moreover, I do not believe our prior caselaw rested entirely on our
interpretation of Whalen and Nixon. It is true that we followed most other circuits
in interpreting those decisions as “recognizing a constitutional right to the privacy . . .
of highly personal information, grounded in the Fourteenth Amendment.” Ante at 7.
But in defining the contours of the right and deciding what a plaintiff would have to
show to establish a violation, we relied not on Whalen and Nixon, but on general
constitutional principles and opinions from other circuits, some of which traced their
roots to before Whalen and Nixon were decided. See, e.g., Eagle, 88 F.3d at 625
(“canvassing the relevant cases”).

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 At least one other circuit has stated that Nelson does not provide courts with
“any reason to take the opportunity to revisit [their] past precedents on this matter.”
See Lee v. City of Columbus, 636 F.3d 245, 260 n.8 (6th Cir. 2011). And other
circuits have not abandoned their pre-Nelson right-to-privacy caselaw after Nelson.
See Hancock v. Cty. of Rensselaer, 882 F.3d 58, 65–70 (2d Cir. 2018) (continuing to
apply pre-Nelson caselaw recognizing “the right to privacy in one’s personal
information, including information about one’s body” in the Second Circuit);
Wyatt v. Fletcher, 718 F.3d 496, 506 n.14 (5th Cir. 2013) (noting that, even after
Nelson, a “general right to nondisclosure of private information” was established in
the Fifth Circuit); see also Leiser v. Moore, 903 F.3d 1137, 1144 (10th Cir. 2018)
(assuming, without deciding, that the Tenth Circuit’s pre-Nelson precedents had not
been overruled). I agree with these courts that Nelson did not abrogate or overrule
pre-existing circuit caselaw. And unlike in Reichle, I do not think a reasonable
government official could have concluded otherwise.

Nelson did clarify that our prior caselaw was not required by Whalen and
Nixon. A reasonable government official could have wondered whether, in light of
that clarification, we would revisit our past decisions and change our right-to-privacy
jurisprudence. But because we had not done so when the government officials made
the disclosures at issue here, they could not have reasonably concluded that the law
in the Eighth Circuit had been changed. And we have not been presented with an
opportunity to revisit our pre-Nelson caselaw in this appeal. See ante at 8.

For these reasons, I believe the panel’s opinion was correct, and I would
reinstate it. To the extent the court does otherwise, I respectfully dissent.
______________________________

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