The justices are on a free-speech spree. In short succession over the last year and change, the U.S. Supreme Court has taken up a string of cases touching nearly every corner of First Amendment doctrine, from compelled speech and true threats to expression that aids or abets a crime. This month the justices piled on further, adding to this year’s docket an important case that will address the Constitution’s safeguards against retaliatory arrests — a question with significant stakes for reporters confronted with the threat of detention for their newsgathering.
The case, Gonzalez v. Trevino, asks the Court to clean up confusion created by its 2019 decision in Nieves v. Bartlett. As the justices have often said, “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for their speech or newsgathering. But when it comes to prosecutors and (as in Nieves) the police, the Supreme Court has crafted a further hurdle for individuals who allege their rights were violated, requiring plaintiffs to show not just that a decision to charge or arrest them was motivated by their speech but also that those sanctions were unsupported by probable cause.
To that judge-made rule, the Court in Nieves attached a judge-made caveat: “the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” (That rule is sometimes called the “jaywalking exception” because the Court offered jaywalking as the paradigm case of a context in which it would raise suspicious eyebrows for police to make an arrest, even with unimpeachable evidence that a person crossed the street illegally.) But that kind of evidence counts? The Court didn’t say, and Nieves drew a slew of separate opinions debating the meaning and scope of that exception.
Sylvia Gonzalez’s suit fell into that open space. A former city council member for Castle Hills, Texas, she organized a petition criticizing the city manager. At the end of the public meeting at which the petition was presented, she alleges, she accidentally placed the petition in a binder she had brought for her other papers. In response, she argues, Mayor Edward Trevino and the local police collaborated to have her arrested and charged with concealing a government record.
To bolster her claim that she was singled out for expressing her views of the city manager, Gonzalez combed through years’ worth of indictments issued under that statute to show that no one had ever been charged on facts like hers. But for the U.S. Court of Appeals for the Fifth Circuit, that wasn’t good enough to invoke the Nieves exception. While other courts of appeal allow plaintiffs to invoke any kind of “objective proof of retaliatory treatment,” including “common sense,” the Fifth Circuit concluded that Gonzalez needed specific examples of “other similarly situated individuals who mishandled a government petition but were not prosecuted.”
The Supreme Court will now clean up that divide, and we would urge the justices to reverse the Fifth Circuit. Retaliatory arrests, as we’ve explained before, are a dangerously attractive tool for law enforcement officers hoping to dam the free flow of information to the public; even when an arrest won’t stand up to legal scrutiny, each journalist unfairly detained is prevented from bringing the public the news that day. But the Fifth Circuit’s inflexible rule would make it unreasonably difficult for reporters to hold officials accountable for those abuses. Officers would, for instance, escape liability for arresting every journalist covering a protest — in which case none would be able to point to a comparator who wasn’t detained for their newsgathering.
That result makes no sense; upholding it would inflict an obvious chilling effect on First Amendment rights. We hope the justices act decisively to close the Fifth Circuit’s loophole.
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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 RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.