Supreme Court should ensure First Amendment rights have remedies, Reporters Committee coalition argues

The Supreme Court’s free-speech docket this term features few obvious blockbusters, unless you have strong feelings on billboard policy. But in Egbert v. Boule, a case set for argument this March, the Court will answer a somewhat arcane question that could have important consequences for press freedoms: whether federal officials can be held personally liable for damages when they retaliate against individuals for exercising First Amendment rights.

Your newsletter writers, alongside several colleagues at the Reporters Committee, filed a brief last week to explain why they can — and why the issue should matter to members of the news media.

The notion that there should be a remedy whenever the Constitution is violated is an old one. As Marbury v. Madison put it, our government would no longer deserve to be “termed a government of laws, and not of men … if the laws furnish no remedy for the violation of a vested legal right.” But in practice, even clear violations routinely go without redress. One reason why: While Congress long ago passed a statute that allows victims to sue state officials for damages when they infringe on federal rights, no counterpart exists to hold federal officers accountable as well.

In a 1971 case, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court recognized that that fact risked creating something of a legal black hole. Sometimes, of course, the courts can safeguard rights through remedies other than damages — by barring the government from enforcing an invalid law, say, or by throwing out evidence that was obtained illegally. But on other footings, the choice will be either –– as Justice John M. Harlan II put it in a separate opinion — “damages or nothing.”

Webster Bivens, for instance, was illegally searched and arrested but never prosecuted, so he would never have (or need) a chance to ask a court to exclude the fruits of the government’s unconstitutional search. On that footing, the Court concluded, courts have the power to hear a claim for damages against the rogue officer, even in the absence of action from Congress, to ensure that those rights don’t go entirely without redress.

Soon after Bivens, a number of federal courts recognized that the same logic could apply to First Amendment violations: once a protest has been broken up, a court can hardly order the Park Police to put it back together again. In the years since, though, the Supreme Court has soured on so-called “Bivens remedies” and has largely declined to recognize them in factual scenarios other than the one presented in Bivens itself. Chastened, the lower courts have also retreated. Now, petitioner Erik Egbert — a border agent who allegedly assaulted respondent Robert Boule and then retaliated against him for reporting that claimed misconduct — has asked the Court to shut the door to new Bivens remedies entirely, including in the First Amendment context.

We filed a friend-of-the-court brief in support of Boule to urge the Court to preserve that recourse for individuals whose First Amendment rights are violated by federal retaliation. After all, when retaliation chills reporting — when, for instance, an unlawful arrest drives a journalist from the scene of a newsworthy event — the impact on First Amendment freedoms is irreversible. Nothing can, at that point, restore to the public news never gathered or photos never taken. As a result, the right to report depends critically on deterring abuses before they happen, and only the threat of damages for the rogue officer can play that role. To wipe out that safeguard would give the government a gratuitous green light to punish the press for performing its constitutional function.

Argument in the case will be held on March 2; as you can imagine, we plan to tune in.

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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 Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.