Access to Justice

RELEASE: Supreme Court rejects artificial limit on liability for speech-based retaliation by government officers

WASHINGTON, DC – Following today’s Supreme Court decision in Gonzalez v. Trevino, a case in which the Court considered what threshold requirements individuals must satisfy to bring First Amendment claims against a state or local official for arresting them in retaliation for their speech, Constitutional Accountability Center Deputy Chief Counsel Brian Frazelle issued the following reaction:

Five years ago, in Nieves v. Bartlett, the Supreme Court made police officers less accountable for using their arrest authority to retaliate against people whose speech the officers dislike. But the Court balanced that ruling with an exception that would allow clear cases of retaliation to proceed in court by allowing plaintiffs to offer evidence that they were singled out for arrest “when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Today, the Court made clear that lower courts must respect that exception, rejecting the Fifth Circuit’s “overly cramped view” of its scope. As we urged in our brief, the Court rejected the argument that plaintiffs bringing retaliation claims must supply evidence that other people have engaged in “virtually identical” conduct without being arrested.

Instead, as the Court made clear, the only requirement is that a plaintiff’s evidence of retaliation must be objective. And this requirement can be satisfied when, as in this case, “no one has ever been arrested for engaging in a certain kind of conduct” and the conduct is not novel.

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Resources:

Case page in Gonzalez v. Trevino: https://www.theusconstitution.org/litigation/gonzalez-v-trevino/

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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