Documents
In the 9th U.S. Circuit Court of Appeals:
In the U.S. Supreme Court:
Summary
On May 28, 2019, the Supreme Court issued a 6-3 opinion reversing the decision of the 9th U.S. Circuit Court of Appeals. In an opinion by Chief Justice Roberts, the Court held that as a matter of law, Bartlett’s First Amendment retaliatory arrest claim failed because the police had probable cause to arrest him. To prevail on a retaliatory arrest claim, the plaintiff must show that the official acted with a retaliatory motive and the act was a “but-for” cause of the Constitutional injury.
The amicus brief
On October 9, 2018, Media Coalition Foundation and the Freedom to Read Foundation joined an amicus brief written by the National Press Photographers Association and signed by 28 other media and free speech organizations.
The brief warns the Supreme Court that there is a great risk to journalists and the news media if the Court precludes any claim alleging First Amendment retaliation if there was probable cause to make an arrest for any offense. It will give police officers, public officials and the government a powerful tool for preventing or suppressing public criticism without any legal recourse to deter the government from doing so.
As the brief explains, “In the United States, numerous journalists have been subjected to arrest merely for doing their jobs. Although it is rare, newspaper publishers have been rousted from their homes in the middle of the night for exposing government corruption. More frequently, reporters and photographers have been swept up by police as they try to cover public demonstrations or to document various forms of police action.” The brief adds, “Where arrests are motivated by hostility to the press or out of a desire to control news coverage, a holding that any probable cause defeats First Amendment protection would endanger vital First Amendment values.”
The arguments made in the brief are very similar to those made in the amicus brief in the Lozman and Higginbotham cases, which were joined by Media Coalition Foundation.
Aside from Media Coalition Foundation, the brief was signed by: American Society of News Editors; the Associated Press; the Associated Press Media Editors; Association of Alternative Newsmedia; the Association of Magazine Media; the Brechner Center for Freedom of Information; Buzzfeed; the California News Publishers Association; the Center for Investigative Reporting; Digital First Media; the E.W. Scripps Company; the Electronic Frontier Foundation; First Look Media Works, Inc.; Freedom to Read Foundation; Gannett Co., Inc.; the International Documentary Association; the Investigative Reporting Workshop; the Los Angeles Times Communications LLC; the Media Institute; the National Press Photographers Association; New York State Broadcasters Association, Inc.; Online News Association; PEN American Center; Radio Television Digital News Association; the Reporters Committee for Freedom of the Press; Reporters Without Borders; Society of Professional Journalists; the Seattle Times Company; the Tully Center for Free Speech; and the Washington Post.
History
Background
On April 12, 2014, Russell Bartlett was attending an outdoor sporting event in Alaska and he was arrested by Alaska State Trooper Luis Nieves and Bryce Weight for disorderly conduct and harassment. Bartlett sued the officers in part on the grounds that he was arrested in retaliation for words he exchanged with Nieves prior to his arrest.
Lower court rulings and appeals
The district court granted summary judgment to Nieves and Weight.
The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s ruling on the claim with regards to retaliatory arrest, finding that probable cause did not automatically preclude a claim of retaliatory arrest.
On February 16, 2018, the officers filed a petition for a writ of certiorari at the U.S. Supreme Court. On June 28, 2018, the petition was granted.
The question presented to the Supreme Court is: Does the existence of probable cause defeat a First Amendment retaliatory arrest claim as a matter of law?
The argument was held on November 26, 2018.