In Narrow Ruling, Supreme Court Revives Lawsuit Challenging Speech-Related Retaliatory Arrest
WASHINGTON – The Supreme Court issued a narrow today in Gonzalez v. Trevino, rejecting a court of appeals’ overly restrictive rule for what individuals must show to sue for an arrest in retaliation for their First Amendment-protected speech. The Supreme Court affirmed its ruling from Nieves v. Bartlett, which held that even when police officers have probable cause to arrest someone, the arrested person can sue as long as there is evidence of retaliation. The court clarified that the only limitation is that such evidence must be objective. The Supreme Court rejected the Fifth Circuit’s “overly cramped” reading of Nieves, which would have required “virtually identical and identifiable comparators,” and has now sent the case back to the lower court.
“When police abuse their discretion to arrest those with whom they disagree, they cause serious harm to those arrested individuals and send the message that they shouldn’t speak out,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project. “Today the court made clear that if you are subjected to a retaliatory arrest, you can sue the government, as long as there is objective evidence of the retaliation.”
The petitioner in this case was Sylvia Gonzalez, a 72-year-old first-time city council member in Castle Hills, Texas, who alleges that she was arrested in 2019 because government officials didn’t like that she was advocating for the removal of the city manager, a police ally. Since police couldn’t constitutionally arrest someone simply because they find what they’re saying offensive, Castle Hills officers used an arcane section of the Texas Penal Code related to the handling of government documents to arrest Gonzalez for accidentally placing a citizen petition she had introduced at her first city council meeting into her personal binder.
Gonzalez sued, alleging that the police violated the First Amendment by arresting her in retaliation for her speech about the city manager. To establish that the arrest was retaliatory, she argued that the law used to arrest her had never been used to go after similar conduct. She even provided a survey of misdemeanor and felony data to show that the law at issue had never been used to arrest someone for misplacing a nonbinding, expressive document, and that city officials bypassed ordinary procedures to ensure she would have to spend time in jail. The Fifth Circuit dismissed her case, holding that to prove retaliation, she would have had to prove that other people who did exactly what she did (accidentally put a petition in their personal binder) but expressed different views (support for the city manager) were not also arrested. The court did not explain how she could possibly have offered such evidence.
The American Civil Liberties Union, the ACLU of Texas, the Foundation for Individual Rights and Expression (FIRE), and the National Association of Criminal Defense Lawyers (NACDL) filed a friend-of-the-court brief urging the Supreme Court to protect our right to engage in constitutionally-protected speech, free from the threat of retaliatory arrest. More specifically, the brief asked the court to hold that its 2019 decision in Nieves v. Bartlett does not apply outside of the context of on-the-spot arrests by individual officers. It also asked the court to clarify that, even if it does apply, a person arrested in retaliation for what they said need not identify someone else who engaged in the same illegal conduct, but said something different, and was not arrested to bring a First Amendment claim.
The Supreme Court ruled on only the second argument, holding that Gonzalez could not be required to — as the Fifth Circuit suggested — provide examples of people who had also mishandled a petition but were not arrested in order to claim that law enforcement retaliated against her. Such a requirement, the court held, would “go [...] too far.” The court did not address the argument about whether Nieves’ rule applies outside of the context of on-the-spot arrests, because its ruling on the first argument was sufficient to reverse the lower court.
Gonzalez v. Trevino is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.
Free Speech
Gonzalez v. Trevino
Free Speech
Gonzalez v. Trevino
Learn More About the Issues in This Press Release
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.