Sotomayor once again is the most speech-protective justice

  U.S. Supreme Court Justice Sonia Sotomayor, as she has done in the public employee First Amendment context and often in Fourth Amendment cases, recently proved to be the justice most protective of individual liberty. She demonstrated her solicitude for free speech in an unusual retaliatory arrest case out of Alaska, where a patron at a winter sports festival was arrested for disorderly conduct.

  The majority of the court ruled in Nieves v. Bartlett (2019) that the lack of probable cause will generally defeat a retaliatory arrest claim, even if the arresting officer had some underlying animus. Writing for the majority, Chief Justice John Roberts wrote that “the presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.” In other words, if law enforcement officers have a valid basis for an arrest, a person can’t claim retaliation.