Posts Tagged ‘First Amendment’
Villarreal v. City of Laredo: The Supreme Court Reverses A Grant of Qualified Immunity In A First Amendment Case
In Villarreal v. City of Laredo, Texas, a 2022 Fifth Circuit case, the plaintiff was prosecuted under a never-before used (and subsequently held-unconstitutional) state statute for publishing information she obtained from a police officer. The Fifth Circuit panel explained as follows in denying qualified immunity to the defendant police officers:
“If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: [Plaintiff] was put in jail for asking a police officer a question [in 2017].
If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”
Thereafter, however, the Fifth Circuit granted en banc review, vacated this panel decision and, over various dissents by six judges, issued a superseding opinion that ruled that the defendant officers were protected by qualified immunity. It explained: “[Plaintiff] cites no case, nor are we aware of one, where the Supreme Court, or any other court, has held that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”
The en banc Fifth Circuit also rejected the plaintiff’s argument that a general First Amendment principle—that “a third party may publish sensitive government information already in the public domain”—demonstrated that the defendants violated clearly settled law. All of the cases the plaintiff relied on for this principle were distinguishable. Villarreal v. City of Laredo, Texas, 44 F.4th 363, 367 (5th Cir. 2022), reh’g en banc granted, vacated, 52 F.4th 265 (5th Cir. 2022) and superseded on reh’g en banc by, 94 F.4th 374 (5th Cir. 2024).
In the initial panel decision Judge Ho had concurred, 44 F.4th at 378, while Judge Priscilla Richman had concurred in part and dissented in part, 44 F.4th at 382.
Thereafter, the plaintiff filed a petition for certiorari which was summarily granted by the Supreme Court, which vacated and remanded to the Fifth Circuit in light of Gonzalez v. Trevino, 144 S. Ct. 1663 (2024). As discussed in an earlier post, Gonzalez held that First Amendment retaliatory arrest claims do not require comparative evidence, only objective evidence of a retaliatory motive. See https://nahmodlaw.com/2024/06/24/the-supreme-court-rejects-a-too-narrow-nieves-first-amendment-retaliation-claims-exception-gonzalez-v-trevino/
Comment
This decision does not signal a change in Supreme Court qualified immunity jurisprudence even though it is one of those rare asymmetric decisions favoring a section 1983 plaintiff. Rather, it indicates that the Court is giving the Fifth Circuit another chance to get the First Amendment violation issue, and the related qualified immunity issue, right, just as the Fifth Circuit panel initially decided.
The Supreme Court Rejects a Too-Narrow Nieves First Amendment Retaliation Claims Exception: Gonzalez v. Trevino
On June 20, 2024, the Supreme Court handed down Gonzalez v. Trevino, 144 S. Ct. — (2024), reversing 42 F.4th 487 (5th Cir. 2022), a § 1983 First Amendment retaliatory arrest case involving the meaning of the “objective evidence” exception of Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Under this “narrow” exception, a First Amendment retaliatory arrest plaintiff has the opportunity to show that, even where there was probable cause to arrest (ordinarily a complete defense to such a claim), this is not a defense if the plaintiff can show through objective evidence that he or she was arrested when other similarly situated persons who did not engage in protected speech were not.
In Gonzalez, the plaintiff, a former city council member, alleged that the individual defendants arrested her for illegally removing a government record in retaliation for the exercise of her First Amendment rights. Because the plaintiff conceded there was probable cause for the arrest, and because the plaintiff (according to the Fifth Circuit) did not introduce comparative objective evidence showing that otherwise similarly situated persons who did not engage in the same protected speech were not arrested, the Fifth Circuit affirmed the dismissal of her § 1983 First Amendment retaliation claim. She did not fit within the exception set out in Nieves even though, after reviewing “the past decade’s misdemeanor and felony data for [the county, where the city was located] … her review had found that the Texas anti-tampering statute had never been used in the county ‘to criminally charge someone for trying to steal a nonbinding or expressive document. … [Her] search turned up 215 felony indictments, and she characterized the typical indictment as involving ‘accusations or either using or making fake government identification documents.'” 144 S. Ct. at –.
Judge Oldham dissented in the Fifth Circuit, 42 F.4th at 495, arguing that the plaintiff stated a § 1983 First Amendment retaliation claim after Nieves even though there was probable cause: Nieves did not require comparative evidence (often difficult if not impossible to obtain), only objective evidence.
The Supreme Court reversed and remanded in a per curiam opinion, ruling that the Fifth Circuit did not properly apply the principles of Nieves. It declared that the Fifth Circuit took “an overly cramped view of Nieves. … [T]he demand for virtually identical and indentifiable comparators goes too far.” The Court observed that the plaintiff’s evidence “that no one has ever been arrested to engaging in a certain kind of conduct … makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”
The Court in Gonzaelz expressly declined to decide the plaintiff’s other contention that the Nieves no-probable cause rule applies only to First Amendment retaliatory arrest claims based on split-second arrests, and not based on deliberative arrests.
Justice Alito concurred in a lengthy opinion. 144 S. Ct. –. He agreed that strict comparator evidence was not required in this case. But he also went on to address and reject the plaintiff’s argument regarding the applicability of Nieves only to split-second arrests and not to deliberative ones. Justice Kavanaugh also concurred, noting that in his view this case was not about the Nieves exception but instead about probable cause as to mens rea rather than conduct-based comparisons. 144 S. Ct. –.
Justice Jackson, joined by Justice Sotomayor, concurring, pointed out that other types of objective evidence such as onerous arrest procedures, timing and false documentation may be used, in addition to surveys, to show impermissible First Amendment retaliation. Finally, Justice Thomas dissented, 144 S. Ct. –, arguing that the Court improperly expanded the Nieves exception. “I would adhere to the only rule grounded in history: Probable cause defeats a retaliatory arrest claim.”
Comments
Nieves, as noted earlier, held that a §1983 plaintiff alleging that he or she was arrested because of the exercise of First Amendment rights has the burden of pleading and proving the absence of probable cause for the arrest. I criticized Nieves in an earlier post for mangling §1983 and the First Amendment in order to protect law enforcement. See https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/. I also, severely criticize Nieves and its reasoning at §3:13 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/ Westlaw).
However, I confess error because I incorrectly predicted that the Court in Gonzalez would continue to make it quite difficult for §1983 plaintiffs in such cases to prevail. Specifically, I predicted that the Court would affirm the Fifth Circuit in Gonzalez and insist on the need for comparative evidence, just as the Court and the circuits do in class-of-one equal protection cases. Instead, to my surprise the Court soundly articulated the evidentiary flexibility necessary to allow § 1983 First Amendment retaliation plaintiffs to carry their difficult burden of overcoming the “narrow” Nieves exception.
Schedule for 40th Annual Section 1983 Conference: April 18-19, 2024
Here is the schedule for the upcoming in-person Section 1983 Conference. We hope to see you there.
Any questions? Contact either CLE@kentlaw.iit.edu or snahmod@kentlaw.iit.edu.
Day One – April 18, 2024
| 8:45 – 9:00 AM | Welcome and Introduction |
| 9:00 – 10:15 AM | The Section 1983 Claim: Basics |
| Section 1983 and Fourteenth Amendment violations State action and color of law First Amendment retaliatory arrest claims The Second Amendment The Fifth Amendment and Miranda claims The Eighth Amendment Cause in fact and proximate cause “Laws” actions Heck v. Humphrey and existing convictions Due Process Section 1983 malicious prosecution claims A quick look at accrual | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Municipal Liability |
| Methods of Establishing Monell Liability What’s an Official Policy and Whose Policy is it? Municipal Liability Claims Post-Connick Municipal Liability Absent Individual Liability Impact of Qualified Immunity on Municipal Liability | |
| Karen M. Blum, Professor Emerita and Research Professor of Law,Suffolk University Law School | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:00 PM | The Fourth Amendment |
| Raff Donelson, Associate Professor of Law, Chicago-Kent College of Law | |
| 2:00 – 3:15 PM | Substantive Due Process |
| Selective Incorporation of the Bill of Rights Protection of Non-Textual Rights from Laws That Interfere with Procreation and Parental Rights Section 1983 Substantive Due Process Claims Brought by Pretrial Detainees, Students, Landowners, and Government Employees | |
| Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law | |
| 3:15 – 3:30 PM | BREAK |
| 3:30 – 4:45 PM | Attorney’s Fees and Related Ethical Issues |
| Issues in recently decided Supreme Court attorney’s fees cases (changes in law regarding nominal damages and impact on availability of fees; standards controlling awards to prevailing defendants; fees for modest injunctive relief without money damages; how reasonable fee is determined (lodestar) Ethics issues in §1983 cases (including Rule 68 issues, conflicts of interest, frivolous claims) Ethics Learning Objectives: 1) Duty of lawyer to represent unpopular clients and causes, even for little or no fee 2) Duty of lawyer to put client’s interest in seeking largest recovery above risk to attorney of reduction of court-awarded fees if merits result obtained is substantially less than outcome sought 3) The importance of a detailed written fee agreement in order to minimize ethics dilemmas in representing clients in civil rights cases | |
| Gerald M. Birnberg, Founding Partner, Williams, Birnberg & Andersen LLP | |
| 4:45 – 5:45 PM | RECEPTION |
Day Two – April 19, 2024
| 9:00 – 10:15 AM | Section 1983 Remedies: Damages and Prospective Relief |
| Section 1983 litigation has given rise to a number of interesting questions associated with remedies. In this session, we will discuss compensatory and punitive damages, as well as issues related to injunctive relief. | |
| Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Individual Immunities |
| A review of the current law and cutting-edge issues with regard to absolute and qualified immunity, including who possesses absolute immunity and for what tasks, what is the standard for qualified immunity, and what are the issues most frequently litigated with regard to immunities. | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:15 PM | The Religion Clauses and Section 1983 |
| History and purposes of the Religion Clauses The Establishment Clause:prayer, religious displays and financial support for private religious education The move to a “history and tradition” test in Establishment Clause cases: Kennedy v. Bremerton School Dist. The Free Exercise Clause: the all-important Smith (peyote) decision, the return to strict scrutiny, the Covid-19 cases and beyond, including Carson v. Makin Congressional response to Smith: RLUIPA | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 2:15 – 3:30 PM | The Supreme Court’s Current and Forthcoming Terms |
| A review of the major decisions from October 2022 (including on affirmative action, religious accommodations in employment, and freedom of speech), and October Term 2023 (including on retaliation claims under the Fourth Amendment, freedom of speech, and gun regulation). | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law |
A Personal New Year’s Day Post on Free Speech and Anti-Semitism
(I presented the following to my fellow congregants this past Saturday morning, Dec. 30, 2023, at the Lake Shore Drive Synagogue in Chicago. I like to think it may hold some interest for others as well.)
I want to ask your indulgence in allowing me to say a few words about Freedom of Speech: what Freedom of Speech is, what its purposes are and why as Jewish citizens of the United States we need to understand it.
Why here and now? People have been asking me about the First Amendment because of the fiasco involving the Congressional testimony of the presidents of Harvard, Penn and MIT. Also, because we are confronted by a surge in anti-Semitism here and abroad.
I. What is Freedom of Speech? Some basics.
The First Amendment to the United States Constitution, which created our republican form of government, declares that “Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
1. The First Amendment applies to government at all levels, and it protects us from governmental regulation of speech, especially (but not only) our political speech. It does not ordinarily apply to governmental regulation of conduct. So that defacing someone’s property by spray-painting swastikas and anti-Semitic slogans is conduct that can be punished. Tearing down posters of Hamas-held hostages on private property is conduct that can be punished. Forcing Jewish students into a university library while pounding on the doors and windows is conduct that can be punished.
2. However, and this is an important takeaway, the First Amendment does not apply to the private sector, including social media, private corporations and private schools and universities. Meaning that they are not bound by First Amendment restrictions. (More about educational institutions below)
3. Like every other individual constitutional right, it is not absolute. There is no First Amendment right to say whatever you want, whenever you want and wherever you want.
Along these lines, here are three exceptions to the First Amendment that Jews (and all citizens) ought to know about.
3 (a). Government can punish an individual who, by speaking to others, intends to incite imminent illegal conduct such as physical violence where that imminent illegal conduct is likely to occur (the incitement to violence exception to the First Amendment). Example: a pro-Palestinian speaker in front of the Israeli consulate in Chicago exhorts a riled-up large group of protestors to burn the consulate down NOW. That speech is punishable whether or not the consulate is burned down.
3 (b). Government can punish an individual who threatens another with physical violence where the other person reasonably believes that such a threat has been made (the true threat exception to the First Amendment). Example: someone who knows my pro-Israel views, and whom I know and who lives near me, sends me an email threatening me with serious bodily harm the next time I leave my home.
3 (c). Government can punish an individual who utters what are called fighting words in a face to face verbal confrontation with another person: this is likely to lead to a breach of the peace or disturbing the peace (the fighting words exception to the First Amendment). Example: a pro-Palestinian protestor comes up to you in public—you’re holding an Israeli flag–and calls you a child-killing Nazi directly to your face.
7. However, offensive speech such as hate speech, standing alone and not involving incitement, true threats and fighting words, is protected under the First Amendment even though it can be incredibly hurtful, isolating and silencing. This protection is unique to the United States; many European countries criminalize hate speech for historical reasons. A possible advantage of protecting hate speech—some people may disagree—is that you know who your enemies are.
II. What’s it for? The purposes.
Our form of government is self-government through reason (a repudiation of government by divine right or by clerics).
The first important purpose of the First Amendment is therefore to protect us from governmental attempts to regulate and criminalize our political speech in order that we can meaningfully participate in self-government. We don’t want government regulating political content and viewpoint.
A second purpose of the First Amendment is to protect the marketplace of ideas—you’ve heard of this one–a kind of laissez faire approach to ideas. The hope is that competition among ideas will bring us closer to something approaching truth. We don’t want government skewing this marketplace by intervening and regulating content and viewpoint.
A third purpose is to promote the personal development of the individual intellectually, politically, culturally and artistically.
A fourth purpose is that speech functions as a safety valve. If people can criticize and protest government and powerful interests in the private sector, then there is less reason to turn to violence and revolution.
Underlying all four of these purposes is skepticism about, and deep suspicion of, government when it tries to regulate speech; namely, the fear of censorship.
III. Why are these basics about the First Amendment important for Jews in particular?
1. Jews have, for better or worse, had to develop a thick skin because of centuries of Jew-hatred. We know our history only too well. This thick skin has helped us to adjust somewhat during the current and shocking upsurge in anti-Semitism in the United States and elsewhere.
But First Amendment protection encourages us and those who are on our side to go on the offensive and to fight it out in the marketplace of ideas without government interference. Many thousands of individuals and Jewish groups have done this since October 7: getting the facts and our opinions out there in print and social media in a reasoned and persuasive way.
2. As I mentioned earlier, the First Amendment does not apply to private universities such as Harvard, Penn and MIT. So what about punishing students who march through their campuses advocating the genocide of Jews?
Such activity may be prohibited by Title VI of the 1964 Civil Rights Act which prohibits racial, color and national origin-based harassment and intimidation of students at private universities receiving federal funds. Title VI also requires the affirmative protection of students against such harassment and intimidation, which may go beyond what the First Amendment requires.
3. But what about academic freedom? My answer is that, even if the First Amendment does not technically apply, private institutions of higher education should be governed by academic freedom norms grounded on the First Amendment. They are not intellectual safe spaces concerned with protecting students from being offended; instead, students should be pushed intellectually.
On the other hand, academic freedom norms dictate that conduct must never interfere with the institution’s educational mission. Harassment and intimidation do in fact constitute such interference as well as being conduct. So is physically preventing invited speakers—whatever their political views–from addressing student groups. Such conduct goes well beyond being offensive and can violate Title VI when it occurs at a private university. And if we’re dealing with a public university governed by the First Amendment, this conduct can and should be punished by university officials and by law enforcement through suspension, expulsion and criminal prosecution.
4. One final takeaway: I want to emphasize the crucial difference between what is legal and what is moral and ethical, a difference that is all too often not taken account of, especially by non-lawyers. Constitutionality is not the same thing as morality. Just because one has a First Amendment or academic freedom right to speak out or protest in a particular way does not mean it is moral or ethical to do so. The First Amendment is not a shield from moral criticism and private censure.
The Harvard, MIT and Penn presidents could have emphasized that their “context” responses were primarily legal in nature and that students marching through campus advocating the genocide of Jews act in a clearly reprehensible and immoral way. They apparently did not do so.
In addition, these presidents almost certainly would have answered the legal question differently if it had involved hypothetical white students advocating the lynching of blacks, thus exposing the underlying hypocrisy of their position: the double standard that Bret Stephens identified so eloquently in the New York Times several weeks ago.
IV. Conclusion: where do we go from here?
The First Amendment gives us room to fight against Jew hatred in politics and in the marketplace of ideas without government interference. Jews will need their usual thick skin to do so effectively. At the same time government must stand with us and declare that Jew hatred is not acceptable any more than race, sex-based and sexual orientation hatred and discrimination are acceptable. This kind of declaration of support by government does not violate the First Amendment because it is not censorship.
Thank you.
Nahmod Law 