Nahmod Law

Archive for the ‘First Amendment’ Category

Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order the escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result?

The Supreme Court granted certiorari on November 13, 2017, in Lozman v. City of Riviera Beach, No. 17-21, to deal with this very issue. In Lozman, the Eleventh Circuit ruled that probable cause is indeed a defense to a section 1983 First Amendment retaliatory arrest claim. Specifically, that court determined that a section 1983 retaliatory arrest plaintiff must allege and prove not only the retaliatory motive but the absence of probable cause as well. In other words, the absence of probable cause is an element of the section 1983 plaintiff’s retaliatory arrest claim.

This decision was based on the Supreme Court’s decision in Hartman v. Moore,  547 U.S. 250 (2006), which held that for section 1983 retaliatory prosecution claims against law enforcement officers (prosecutors themselves are absolutely immune from damages liability for their decision to prosecute), the plaintiff must allege and prove not only the impermissible motive but the absence of probable cause as well. The Court reasoned that there was a presumption of prosecutorial regularity that the section 1983 plaintiff must overcome as an element of his retaliatory prosecution case. Accordingly, as a matter of section 1983 statutory interpretation and policy (but not of constitutional law), the plaintiff should have this twin burden in retaliatory prosecution cases.

The Court in Hartman explained that a retaliatory prosecution case was very different from the usual First Amendment retaliation case that involves a relatively clear causal connection between the defendant’s impermissible motivation and the resulting injury to the plaintiff. It was appropriate in such cases to apply the Mount Healthy burden-shift rule under which the defendant has the burden of disproving but-for causation in order to prevail.

As discussed in a prior post, the Court had this same First Amendment retaliatory arrest issue before it previously in Reichle v. Howards, 566 U.S. 658 (2012). But it avoided addressing the merits by ruling for the individual defendants on qualified immunity grounds. See https://nahmodlaw.com/2012/06/13/new-supreme-court-decision-reichle-v-howards-and-first-amendment-retaliatory-arrests/

Comment: The Court Should Reverse the Eleventh Circuit

In my view, the Court’s decision in Hartman should not be applied to First Amendment retaliatory arrest cases. The express reason for the Hartman rule is that First Amendment retaliatory prosecution cases involve a presumption of prosecutorial regularity. But this reason is clearly inapplicable where there is no prosecution and the constitutional challenge is to the arrest itself.

Moreover, First Amendment retaliatory arrest claims involve the impermissible motivation (a subjective inquiry) of law enforcement officers irrespective of probable cause, which is an objective inquiry. Under this objective inquiry, the existence of probable cause precludes a Fourth Amendment violation based on an arrest even where that arrest is grounded on an offense different from the offense for which probable cause is deemed to be present. This provides a great deal of protection for police officers who allegedly make arrests in violation of the Fourth Amendment. However, if a police officer arrests a person for racial reasons, and the claimed injury is grounded on those racial reasons, it should not matter for the Equal Protection claim–even if it would for a Fourth Amendment claim–that the officer had probable cause to do so. This reasoning should apply as well to section 1983 First Amendment retaliatory arrest claims.

It was always questionable whether the Court in Hartman should have allowed policy considerations to change the usual section 1983 causation rules in First Amendment retaliatory prosecution cases. Regardless, that reasoning should most definitely not be extended to First Amendment retaliatory arrest cases. Such policy considerations as are discussed in Hartman are most appropriately addressed, if they are to be addressed at all, as part of the qualified immunity inquiry, not the elements of the section 1983 retaliatory arrest claim.

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Written by snahmod

December 4, 2017 at 10:14 am

Freedom of Speech (6): Fighting Words

This post answers three questions.

1. What are fighting words?

2. Are fighting words protected by the First Amendment?

3. If not, why not?

What are fighting words?

It is fair to say that the category of fighting words has been significantly limited in the years since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the seminal fighting words case discussed below. As I read the subsequent cases, fighting words are in-your-face insults that can be based on race, ethnic origin, religion or sex but don’t necessarily have to be. For example, going right up to someone and yelling a profane insult about that person’s mother may constitute fighting words. But carrying a banner across the street from that person with the same message does not constitute fighting words that can be punished.

Fighting words are not protected by the First Amendment

The Supreme Court explained it this way in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and the obscene, the profane, the libelous, and the insulting or “fighting” words–those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. … [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Why are fighting words not protected?

The Court’s answer in Chaplinsky is several-fold.

First, there is an historical basis, according to the Court, namely, that it has never been thought otherwise. But this is not entirely satisfactory because the Court also lists the lewd and the profane, both of which (so long as not obscene) are now protected by the First Amendment. In addition, the Court lists the libelous, but this category has now been significantly limited by New York Times v. Sullivan, 376 U.S. 254 (1964), which constitutionalized defamation as it affects not only public officials and public figures but also private persons where the speech is on an issue of public concern.

Second, the Court suggests that fighting words tend to incite an immediate breach of the peace, a justification reminiscent of the clear and present danger test of Holmes and Brandeis. But this too is not a satisfactory explanation: where fighting words are present, there is no inquiry into whether in fact there is a clear and present danger. Perhaps the answer is that one’s violent reaction to fighting words is immediate and instinctive; there is no time for counterspeech. [Note, though, that one who responds violently to fighting words is not immune from criminal punishment for his conduct]

Third, the Court engages in what has been called categorical balancing. Namely, it balances the free speech interest in, say, fighting words, against the social interest in order and morality, and finds that as a general matter, the latter trumps the free speech interest. Interestingly, the Court thereby engages in content discrimination which is otherwise not permitted to governments acting in a regulatory role. Moreover, categorical balancing appears inconsistent with the marketplace of ideas rationale.

The exclusion of fighting words and the other categories from First Amendment protection (or coverage) reflects what has been called the “two-tier theory” of the First Amendment, a theory that is based on the content of speech.

 

(For much more on the First Amendment search “free speech” on this blog)

I invite you to follow me on Twitter: @NahmodLaw.

 

 

Written by snahmod

September 11, 2017 at 1:31 pm

Political Protests and the First Amendment (Video)

On March 2, 2017, IIT Chicago-Kent College of Law presented a two hour program for both non-lawyers and lawyers on political protests and free speech. This program was prompted by the suddenly developing political protests directed at the President’s restrictive travel ban and his proposed actions against immigrants.

I spoke for the first half hour and provided a First Amendment overview (what I termed a “primer”) as well as concrete suggestions for political protestors.

In the second and third half-hours two highly regarded Chicago attorneys, Molly Armour and Ed Mullen, discussed their experiences with political protests and law enforcement. They also offered advice to protestors.

The final half hour, which was quite dynamic, addressed questions from a very engaged audience.

If you are interested in the dos and don’ts of political protest, then this is the video for you. I recommend it highly.

Here is the link: https://kentlaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=fc5b4a7c-841e-4db0-a43f-a9d7fad63f6d

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

March 19, 2017 at 9:47 pm

Posted in First Amendment

My Lecture on the Supreme Court, Free Speech and Hate Speech (Audio)

One of my most popular posts is Know Your Constitution (5): Free Speech and Hate Speech, which was published on December 4, 2013, and can be found here: https://nahmodlaw.com/2013/12/04/know-your-constitution-5-free-speech-and-hate-speech/

More recently, I was invited to lecture on this topic to a general audience at Moriah Congregation in Deerfield, IL, on November 30, 2016. The attentive and engaged audience consisted of adults attending a continuing series of lectures on Henry Ford and anti-Semitism, with my lecture coming near the end of the series.

Following a gracious introduction by Bruce Ogron, an attorney and graduate of IIT Chicago-Kent College of Law, I spoke for 45 minutes and then answered some very good questions for another 15 minutes. I enjoyed the experience immensely.

I spoke first about common erroneous assumptions about the Supreme Court. I then moved into the mainstream theories or purposes of free speech, followed by three important considerations in free speech case law, and I concluded with a discussion of hate speech.

I am very pleased to offer this audio of my lecture.

View or Download file via Google Drive, open on Panopto or listen here (no video):

Written by snahmod

December 14, 2016 at 2:35 pm

My First Amendment Class on Access to the Press and to Information (Audio)

I audio-recorded a 1 1/2 hour makeup class in my First Amendment course. This class took place on November 18, 2015, and dealt with freedom of the press, access to the press and press/public access to information.

This class began with my brief review of the preceding class that addressed the First Amendment as a shield for the press, including Cohen, Branzburg and Zurcher.

I then got right into the cases that address the First Amendment as a sword, including Red Lion, Miami HeraldRichmond Newspapers and Houchins.

I hope you find it of interest.

Check it out below.

listen online:

  • or download file here

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Written by snahmod

December 28, 2015 at 10:57 am

Posted in First Amendment

The Confederate Flag and the Walker Case: A Video

Several weeks ago the Chicago-Kent Federalist Society sponsored a discussion of the Confederate Flag. John Kunich (University of North Carolina at Charlotte) and I spoke about the symbolism of the Confederate Flag.

In particular I discussed the Supreme Court’s recent  important First Amendment Confederate Flag/license plate decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (No. 14-144, 6-18-15). I also addressed government speech and forum analysis.

The program lasted for 50 minutes, and I was the second speaker. There was no followup discussion.

Here is the video of that program. I hope you find it of interest.

 

I invite you to follow me on Twitter @NahmodLaw.

 

Written by snahmod

November 24, 2015 at 9:59 am

Posted in First Amendment

All My First Amendment Posts to 10-12-15

This is Part III of the All My Posts series to 10-12-15. Part I, dealing with section 1983 and Part II, dealing with Constitutional Law,  were also posted today.

Please search within this post for any cases, topics and the like that you are interested in.

PART III: FIRST AMENDMENT

Freedom of Speech (1): Three Rationales

Freedom of Speech (2): Content, Medium and Forum

Freedom of Speech (3): The Clear and Present Danger Years

Freedom of Speech (4): Internet Threats and Elonis v. United States

Public Employee Free Speech: The New Regime

From Buckley to Citizens United (Part One of Two)

From Buckley to Citizens United (Part Two of Two)

Government Speech and Justice Souter (1): Introduction

Government Speech and Justice Souter (2): Rust v. Sullivan

Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia

Government Speech and Justice Souter (4): Glickman and Finley

Government Speech and Justice Souter (5): Univ. of Wisconsin v. Southworth

Government Speech and Justice Souter (6): Johanns v. Livestock Marketing Association

Government Speech and Justice Souter (7): Garcetti v. Ceballos

Government Speech and Justice Souter (8): Pleasant Grove City v. Summum

Government Speech and Justice Souter (9): A Short Coda

Animal Cruelty, Crush Videos and U.S. v. Stevens (Video)

Borough of Duryea v. Guarnieri: New Supreme Court Section 1983 Public Employee Petition Clause Case

Certiorari Granted in Reichle v. Howards: A First Amendment Retaliatory Arrest Case

New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests

First Amendment Retaliatory Arrest Decisions After Reichle

New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case

New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Law Professors’ Amicus Brief in Lane v. Franks

A Short Video on Lane v. Franks

Lane v. Franks: New Supreme Court Public Employee Free Speech Decision

The “Ground Zero Mosque”: A Discussion (Video)

The Religion Clauses: ‘Tis the Season

New Supreme Court Religion Decision: Hosanna-Tabor Evangelical Lutheran Church and School

Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause

A Video Presentation on Town of Greece v. Galloway

Remarks on the Establishment Clause and Town of Greece

A Video: The Religion Clauses, Town of Greece and Hobby Lobby

Written by snahmod

October 12, 2015 at 2:52 pm