Supreme Court to consider whether federal officers can be sued personally for retaliating against exercise of free speech rights

The U.S. Supreme Court recently decided to hear a case asking whether a person can sue an agent of the federal government for money damages to remedy a violation of his or her First Amendment rights, absent an express statutory grant. The case, Egbert v. Boule, involves a physical altercation near the Canadian border between an innkeeper and a U.S. Customs and Border Protection agent that resulted in the innkeeper filing a complaint against the agent, and the agent retaliating by subsequently contacting the IRS to look into the innkeeper’s taxes.

Generally, an individual cannot sue a federal officer for monetary damages unless specifically authorized under a statute. Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, however, the Court recognized an implied right of action for damages against federal officers for violations of certain constitutional rights. While Bivens involved a Fourth Amendment violation, the Court has since recognized Bivens remedies for Fifth and Eighth Amendment violations.

Recently, however, the Supreme Court has been reluctant to expand Bivens to other constitutional violations. In considering whether to recognize a Bivens cause of action, the Court will consider the particular facts of the case to determine if the injury arises in a “new context” or involves a “new category of defendants” and whether there are any “special factors that counsel hesitation.”

In 2020, a panel of judges for the U.S. Court of Appeals for the Ninth Circuit extended Bivens to remedy the First Amendment retaliation claim in Egbert, along with a Fourth Amendment violation for the physical altercation. The Ninth Circuit reasoned that while Egbert does present a new context in light of the First Amendment question, no special factors counseling hesitation are present to impede extending Bivens. In addition, there is no meaningful alternative remedy for the violation, as the Federal Tort Claims Act does not allow punitive damages for constitutional violations.

The importance of recognizing Bivens remedies for reporters cannot be overstated. As the Reporters Committee has argued in friend-of-the-court briefs in the past, Bivens remedies are a powerful deterrent against law enforcement interfering in newsgathering. Knowing that the use of excessive force against or the arrest of a reporter engaged in newsgathering carries the threat of litigation or personal financial liability serves to discipline law enforcement and safeguard the news media’s constitutionally recognized role as watchdog.

The need for Bivens as a deterrent against law enforcement to protect the First Amendment rights of reporters is clear, especially for journalists who record police activity in public. In 2020, journalists faced a record number of attacks and arrests while documenting nationwide protests against police brutality and racial injustice, including some at the hands of federal officers during the clearing of Lafayette Square in Washington, D.C., and during demonstrations in Portland, Oregon. Concern over this trend has not dissipated. According to the U.S. Press Freedom Tracker, there have been 135 assaults of journalists in 2021.

As the Supreme Court has stated, Bivens is appropriate for the “most flagrant and patently unjustified sorts of police conduct,” exactly the conduct that occurs when law enforcement arrest or use force against clearly identifiable journalists doing their jobs. But the Court’s recent hesitancy to recognize Bivens claims in new contexts has been applied by lower courts to suggest that Bivens may not apply to First Amendment claims at all. We will be tracking this case closely.

Like what you’ve read? Sign up to get the full This Week in Technology + Press Freedom newsletter delivered straight to your inbox!

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.