Last week, a federal district court judge dismissed claims that federal officers could be personally sued for damages for allegedly violating the First Amendment rights of protesters cleared from Lafayette Square in Washington, D.C., on June 1, 2020.
The Reporters Committee submitted a friend-of-the-court brief in the case in support of neither party, which argued that the availability of such remedies for violations of First Amendment newsgathering rights, including the right to record police activity in public, are an important deterrent against such violations, and that existing precedent does not broadly preclude their availability in First Amendment cases.
Judge Dabney Friedrich of the U.S. District Court for the District of Columbia issued the opinion. The court did not state, outright, that money damages lawsuits against federal officials in their personal capacities — known as Bivens actions, and named for a 1971 Supreme Court ruling — are never available for First Amendment violations, but the court did suggest that such cases are precluded when they implicate national security considerations, such as presidential protection.
This issue has particular relevance for journalists who, while lawfully covering protests, are arrested or subjected to the use of force by federal police. Such incidents could present violations of two important First Amendment newsgathering protections — the right to be free from retaliatory action by law enforcement for the exercise of First Amendment rights and the right to record police activity in public. During the protests of the last year, we have seen repeated instances of journalists lawfully engaged in newsgathering being targeted in crowd control actions — including some live, on-camera recording police.
The plaintiffs in the Lafayette Square case argued that they should be allowed to seek damages for alleged violations of their constitutional rights under Bivens, the ruling that first recognized an implied cause of action for Fourth Amendment violations by federal officers (a specific federal statute, 42 U.S.C. 1983, provides for similar actions against state and local officials, including actions beyond the Fourth Amendment context).
The Supreme Court has expressly extended Bivens remedies to violations of Fourth, Fifth and Eighth Amendment rights, and has established a two-step inquiry for courts deciding whether to extend the remedy to a new context. The first is to identify whether the fact pattern at hand actually constitutes a new context, and the second is to identify whether special factors counsel hesitation in extending the remedy.
Here, Judge Friedrich found that the protesters’ claims arose in a new context — presidential protection — and that special factors counseled against extension.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.