concurring.
I join the majority opinion and write separately merely to suggest an additional ground for the decision. We know from Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), that defamation is not a federal constitutional tort. But it does not follow that the common law of defamation is entirely irrelevant to cases where a person complains that a government agency deprived him of liberty by disseminating derogatory falsehoods about him. An established defense in the law of defamation is the defense of privilege in cases where there is a legal or moral duty to communicate, as where an employer gives a character reference to a firm to which his former employee has applied for a job, or a credit bureau discloses to its members someone’s credit rating, or, most pertinently, one public officer communicates with another in the discharge of his official duties. See Prosser and Keeton on the Law of Torts § 115, at pp. 826-30 (5th ed. 1984).
Although the privilege is “qualified,” meaning it is forfeited if the defendant acts in bad faith, Perry has never tried to prove bad faith and his briefs on appeal do not claim bad faith. Any charge that the FBI either fabricated or maliciously disseminated the derogatory information about Perry that went to the other federal agencies would be highly implausible in the circumstances, so I am not surprised that he has not pursued it seriously. I would deem it abandoned, on the authority of such cases as Hershinow v. Bonamarte, 735 F.2d 264, 266 (7th Cir.1984), and Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
If, therefore, Perry does not even have a common law defamation case against the FBI, then I am doubly doubtful whether he has a good federal constitutional case against the FBI. For I do not see how the FBI could reasonably be thought to have deprived him of his liberty of occupation without due process of law through a dissemination of information privileged under *1305common law principles. Of course the Constitution sometimes puts government officials under tighter reins than the common law would do. But the Supreme Court has made clear that so far as defamation by government officials is concerned, the Constitution puts them under looser reins. Just as it would be fantastic to suggest that a government official could be guilty of depriving a person of liberty of occupation by disseminating truthful, vocationally relevant information about the person, so it would be only a little less fantastic to suggest that an official could be guilty of such a deprivation in a case where his conduct would be privileged if the plaintiff had alleged defamation instead of a violation of the Constitution. That would turn Paul v. Davis on its head, by making it easier to bring defamation cases as constitutional than as common law tort cases rather than harder.
Against my analysis it can be argued that the essential holding of Paul v. Davis is merely that reputation, the interest that the law of defamation protects, is not liberty or property within the meaning of the due process clause. See 424 U.S. at 712, 96 S.Ct. at 1166. But where defamation is alleged to be the means by which the plaintiff was deprived of liberty, he must prove defamation, subject to generally recognized defenses that are not inconsistent with constitutional policy. Among those is the qualified privilege for internal communications on official business. It is a privilege sensibly designed to foster free communication within government on matters of official business. It is a complete defense to Perry’s claim.
I emphatically do not suggest that every common law privilege is absorbed into constitutional tort law. Obviously a blanket immunity for all official misconduct would not be. Some common lav/ privileges, however, clearly are. It is by this route that the absolute immunity of some government officials and the qualified immunity of others from damage suits under section 1983 have gotten into constitutional law; the statute does not refer to any such immunities. See, e.g., Pierson v. Ray, 386 U.S. 547, 553-57, 87 S.Ct. 1213, 1217-19, 18 L.Ed.2d 288 (1967); Cleavinger v. Saxner, — U.S. —, 106 S.Ct. 496, 500-01, 88 L.Ed.2d 507 (1985). Section 1983 is not self-contained; it was enacted against a background of common law principles which apply to the extent, though only to the extent, that they are consistent with the statute’s purposes. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951); Carey v. Piphus, 435 U.S. 247, 254-59, 98 S.Ct. 1042, 1047-50, 55 L.Ed.2d 252 (1978); Taliferro v. Augle, 757 F.2d 157, 161-62 (7th Cir.1985); Parrett v. City of Connersville, 737 F.2d 690, 695 (7th Cir.1984). A qualified privilege for internal governmental communications on matters of governmental concern fits the purposes of the statute as it has been interpreted by the Supreme Court in relation to defamation.