Coalition: Supreme Court should hold that probable cause doesn’t bar claims of First Amendment retaliatory arrest

Update: The U.S. Supreme Court, on May 29, 2019, held that because there was probable cause to arrest the Respondent Russell Bartlett, his retaliatory arrest claim fails as a matter of law.

Staff Attorney Caitlin Vogus said: “The Reporters Committee is disappointed with the Supreme Court’s holding that, in most cases, the existence of probable cause for an arrest will defeat a claim of retaliatory arrest based on the exercise of First Amendment rights. As Justice Ginsburg noted in her opinion concurring in the judgment in part and dissenting in part, the power to arrest ‘can be abused to disrupt the exercise of First Amendment speech and press rights.’ The Reporters Committee remains concerned that the threat of retaliatory arrests may chill the news media and endanger vital First Amendment values.”

The Reporters Committee for Freedom of the Press has joined a brief filed by the National Press Photographers Association and 29 other press freedom and media organizations asking the U.S. Supreme Court to hold that the existence of probable cause for an arrest doesn’t bar defendants from claiming they were arrested in retaliation for exercising their First Amendment rights.

The Supreme Court’s decision regarding whether the existence of probable cause to arrest someone necessarily means they cannot make out a claim for retaliatory arrest comes from a case involving Russell Bartlett, who was arrested for disorderly conduct and harassment. Bartlett sued the officers, claiming they arrested him in retaliation for his speech and his refusal to answer their questions.

In a friend-of-the-court brief filed Oct. 9, the coalition argues that the existence of probable cause should not automatically defeat a claim of retaliatory arrest. Rather, if the plaintiff can show that the arrest was made to inhibit or penalize the exercise of First Amendment rights, the coalition argues the burden should shift to the government to show that an arrest would have happened regardless. This approach “preserves police officers’ ability to raise probable cause as a defense, but it does not extinguish First Amendment claims when government actors purposefully target members of the press,” the coalition writes in the brief.

The coalition warns that a ruling holding that probable cause blocks First Amendment retaliatory arrest claims would endanger freedom of the press because it may prevent legal challenges by journalists who are improperly arrested for doing their jobs. As the coalition brief notes, an important purpose of the news media is to inform the public of governmental excess and corruption, which often creates an adversarial relationship between the press and the powerful. Given this reality, the coalition writes, “If probable cause were all that were needed to bar a First Amendment claim, then officials would be able to retaliate against members of the press with impunity.”

The threat of arrest is not theoretical for journalists. In 2017, 33 reporters in the U.S. were arrested while working, according to the U.S. Press Freedom Tracker. The coalition also notes several high-profile instances when reporters were arrested on dubious charges, such as the Ferguson protests and the Occupy Wall Street movement.

These types of arrests often feature “catch and release” tactics where journalists are detained on low-level charges and let go after a short time in custody. Such arrests are extremely disruptive for reporters — particularly when responding to breaking news — and create a chilling effect that could make journalists think twice about confronting authorities in the future.

Photojournalists are particularly vulnerable to retaliatory arrests when they document police activity in public. The brief cites an example of a photographer in Detroit who was arrested and whose phone was confiscated after she photographed officers putting a suspect in a police car.

“Arrests such as these thwart the well-established First Amendment right to record police activity in public, which is a crucial function journalists perform in order to ensure that the police remain accountable to the public they serve,” the coalition argues.

The full brief is available here.