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.

  Russell Bartlett, an attendee at the Arctic Man festival near Paxson, Alaska, contended that two officers arrested him because he would not talk to one of them in an earlier dispute and because he told some minors not to answer questions from the second officer, a state trooper. The officers contended that Bartlett was arrested for disorderly conduct, interfering with an investigation and engaging in conduct that led to a physical confrontation.

  When the state dropped the criminal charges, Bartlett filed a civil rights lawsuit, alleging that the officers arrested him in retaliation for his protected speech — not talking to one officer and for telling others not to speak to the police.

  The Supreme Court sided with the law enforcement officers, reasoning that in the vast majority of retaliatory arrest cases, probable cause will defeat the claim. The majority at least recognized an exception or qualification in those cases where a civil rights plaintiff seems to be selectively targeted or singled out because of his or her speech. Roberts wrote that “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.”

  However, Justice Sotomayor wrote the only full dissenting opinion (justices Neil Gorsuch and Ruth Bader Ginsburg authored partial dissents). Sotomayor recognizes that sometimes officers arrest individuals out of retaliation for their speech more so than because a person has committed a crime.

  She argues that the court should apply the standard used in public employee First Amendment retaliation cases in Mount Healthy Board of Education v. Doyle (1977). Under the application of the so-called Mount Healthy test in this context, a civil rights plaintiff must make an initial showing that he or she was arrested at least in part because of his or her protected speech. In other words, the plaintiff must show that a motivating or substantial factor for the arrest was retaliation because the officer did not like or wanted to punish someone for his or her expression. If the plaintiff can make such a showing, the government must show the officer would have made the arrest regardless of the protected speech.

  Probable cause can be a relevant factor in retaliatory arrest cases. After all, if an officer has probable cause, the officer can claim his or her motivation was to punish someone for illegal conduct. But the majority of the Supreme Court went too far in saying that probable cause generally defeats a retaliatory arrest claim.

  There are times when officers do arrest people for purely retaliatory reasons. These officers do not like to be challenged by citizens in the exercise of their duties. But we live in a free society, not a police state.

  Justice Sotomayor, more than the vast majority of her colleagues, recognizes this unfortunate reality. “The power to constrain a person’s liberty is delegated to law enforcement officers by the public in a sacred trust,” Sotomayor wrote. “The First Amendment stands as a bulwark of that trust, erected by people who knew from personal experience the dangers of abuse that follow from investing anyone with such awesome power.”

  About the author: David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Documents Decoded: Freedom of Speech” (ABC-CLIO, 2017).

  This article was published by the Freedom Forum Institute.