Amicus Curiae Brief — Luis A. Nieves, et al., Petitioners v. Russell P. Bartlett

No. 17-1174

IN THE

Supreme Court of the United States

___________________

LUIS A. NIEVES, ET AL.,

v.

Petitioners,

RUSSELL P. BARTLETT,

Respondent.

___________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

___________________

BRIEF OF AMICI CURIAE NATIONAL PRESS

PHOTOGRAPHERS ASSOCIATION AND 30

MEDIA AND FREE SPEECH ORGANIZATIONS IN

SUPPORT OF RESPONDENT

___________________

Robert D. Balin

Counsel of Record

Abigail B. Everdell

Davis Wright Tremaine LLP

21st Floor

1251 Avenue of the Americas

New York, NY 10020-1104

(212) 489-8230

robertbalin@dwt.com

Charles S. Sims

Media Freedom &

Information Access Clinic

Yale Law School

P.O. Box 208215

New Haven, CT 06520

Mickey H. Osterreicher

National Press

Photographers Association

120 Hooper Street

Athens, GA 30602

Counsel for Amici Curiae

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

Does the existence of probable cause defeat a

First Amendment retaliatory arrest claim under 42

U.S.C. § 1983 as a matter of law?

ii

TABLE OF CONTENTS

QUESTION PRESENTED........................................... i

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 5

I.

FREEDOM OF THE PRESS IS AT RISK

IF PROBABLE CAUSE SERVES AS AN

ABSOLUTE BAR TO FIRST

AMENDMENT RETALIATION CLAIMS ........... 5

A. Retaliation for Unfavorable Press

Coverage ........................................................ 8

B. Arrests While Covering Public Protests

or Documenting Police Misconduct............... 9

II. THE COURT SHOULD ADOPT A

STANDARD THAT APPROPRIATELY

BALANCES THE NEEDS OF LAW

ENFORCEMENT WITH FIRST

AMENDMENT VALUES ................................... 15

A. The Power to Make Arrests Can Disrupt

Newsgathering and Other

First Amendment Activities........................ 15

B. The Burden Shifting Framework of Mt.

Healthy City School District Board of

Education v. Doyle Strikes the Correct

Constitutional Balance................................ 20

CONCLUSION .......................................................... 26

iii

Appendix A-Description of Amici Curiae .............. A-1

iv

TABLE OF AUTHORITIES

Page(s)

Cases

City of Houston, TX v. Hill,

482 U.S. 451 (1987) .............................................. 17

Cox v. Louisiana,

379 U.S. 536 (1965) .............................................. 16

Crawford-El v. Britton,

523 U.S. 574 (1998) ........................................ 20, 21

Devenpeck v. Alford,

543 U.S. 146 (2004) .............................................. 25

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) ................................. 14

First National Bank of Boston v.

Bellotti,

435 U.S. 765 (1978) ................................................ 3

Garcia v. Montgomery County,

2013 WL 4539394 (D. Md. Aug. 23,

2013), No. JFM-12-3592 ................................ 17, 18

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) ........................ 3, 14, 23

Grosjean v. American Press Co., Inc.,

297 U.S. 233 (1936) ................................................ 7

Hartman v. Moore,

547 U.S. 250 (2006) ........................................ 20, 25

v

Heffernan v. City of Paterson,

136 S. Ct. 1412 (2016) .......................................... 20

Higginbotham v. Sylvester,

No. 16-3994, 2018 WL 3559116

(2d Cir. July 25, 2018) ......................................... 24

In re King World Prods., Inc.,

898 F.2d 56 (6th Cir. 1990) .................................. 15

Kolender v. Lawson,

461 U.S. 352 (1983) .............................................. 17

Lacey v. Maricopa County,

693 F.3d 896 (9th Cir. 2012) ............................. 8, 9

Lozman v. City of Riviera Beach, Fla.,

138 S. Ct. 1945 (2018) .............................. 18, 23, 24

Malley v. Briggs,

475 U.S. 335 (1986) .............................................. 19

Malloy v. Hogan,

378 U.S. 1 (1964) .................................................... 2

Monell v. N.Y.C. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) .............................................. 19

Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle,

429 U.S. 274 (1977) ...................................... passim

New York Times Co. v. United States,

403 U.S. 713 (1971) ................................................ 3

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) .............................................. 17

vi

Patterson v. United States,

999 F. Supp. 2d 300 (D.D.C. 2013) ...................... 17

Perry v. Sindermann,

408 U.S. 593 (1972) ........................................ 20, 22

Reichle v. Howards,

566 U.S. 658 (2012) ...................................... passim

Rossignol v. Vookhaar,

316 F.3d 516 (4th Cir. 2003) ................................ 26

Scott v. Harris,

550 U.S. 372 (2007). ............................................. 23

Shuttlesworth v. City of Birmingham,

382 U.S. 87 (1965) ................................................ 16

Smith v. Goguen,

415 U.S. 566 (1974) .............................................. 17

Turner v. Lieutenant Driver,

848 F.3d 678 (5th Cir. 2017) .......................... 14, 23

Village of Arlington Heights v. Metro.

Hous. Dev. Corp,

429 U.S. 252 (1977) .............................................. 25

Whren v. United States,

517 U.S. 806 (1996) .............................................. 25

Statutes

42 U.S.C. § 1983 ...................................................... 5, 8

vii

Other Authorities

Andrew Metcalf, Montgomery County

Settles First Amendment Lawsuit

with Photographer, BETHESDA MAG.

(Mar. 8, 2017), available at

http://www.bethesdamagazine.com/B

ethesda-Beat/ 2017/MontgomeryCounty-Settles-First-AmendmentLawsuit-with-Photographer ................................ 13

Elise Schmelzer, Denver Officer Accused

of Detaining Colorado Journalist

Faces No Charges, DENVER POST

(Aug. 23, 2018), available at

https://www.denverpost.com/2018/08

/23/denver-police-detainedjournalist-no-charges/ .......................................... 13

Elizabeth Kolbert, The Big Sleazy, THE

NEW YORKER (June 12, 2006),

available at

www.newyorker.com/magazine/2006/

06/12/the-big-sleazy ............................................... 7

Erin McCann, Judge Rejects Riot

Charge against Amy Goodman of

‘Democracy Now’ Over Pipeline

Protest, NEW YORK TIMES (Oct. 17,

2016), available at

https://www.nytimes.com/2016/10/18

/ us/judge-rejects-riot-chargeagainst-amy-goodman-of-democracynow-over-pipeline-protest.html ........................... 11

viii

Freep Photographer Arrested While

Recording An Arrest, CBSLOCAL.COM

(July 16, 2013), available at

https://detroit.cbslocal.com/2013/07/1

6/freep-photographer-arrested-whilerecording-an-arrest/ ............................................. 13

Howell Raines, George Wallace,

Segregation Symbol, Dies at 79, NEW

YORK TIMES, (Sept. 14, 1998),

available at

https://www.nytimes.com/1998/14/us/

George-wallace-segregation-symboldies-at-79.html ....................................................... 6

Jaclyn Peiser, Journalist Swept Up in

Inauguration Day Arrests Faces

Trial, NEW YORK TIMES (Nov. 14,

2017), available at

https://www.nytimes.com/2017/11/14

/business/media/alexei-woodjournalist-trial-inauguration.html ...................... 10

James T. Hamilton, Attacks on the Press

Have Helped Bring Down a

President Before, WASHINGTON

MONTHLY (Jan. 12, 2017), available

at

https://washingtonmonthly.com/2017

/01/12/nixon-and-trump-past-asprologue .................................................................. 6

ix

Joel Simon, Barack Obama’s Press

Freedom Legacy, COLUMBIA

JOURNALISM REVIEW, (April 3, 2015),

available at

https://www.cjr.org/criticism/barack_

obamas_press_freedom_legacy.php ....................... 6

List of White House ‘Enemies’ and

Memo Submitted by White House

Counsel John Dean to the Ervin

Committee, Facts on File, Watergate

and the White House, vol. 1, pp. 9697, available at

https://www.colorado.edu/AmStudies

/lewis/film/enemies.htm ......................................... 6

Matt Hamilton, L.A. Times

Photographer Arrested After

Covering Nancy Reagan Funeral

Motorcade, L.A. TIMES, (March 9,

2016), available at

http://lat.ms/1QFntAG ......................................... 14

Matt Stevens, Charge Dropped against

Reporter Who Questioned Tom Price,

NEW YORK TIMES (Sept. 6, 2017),

available at

https://www.nytimes.com/2017/09/06

/business/media/tom-price-journalistarrest.html ........................................................... 12

Michael M. Grynbaum, Trump, in

Latest Bout With Media, Conjures

Physical Fight With a Foe, NEW

YORK TIMES (July 3, 2017) ..................................... 7

x

Mike Maciag, Survey: Almost All Police

Departments Plan to Use Body

Cameras, GOVERNING (Jan. 26.

2016), available at

http://www.governing.com/topics/pub

lic-justice-safety/gov-police-bodycamera-survey.html ............................................. 22

Mobile Fact Sheet, PEW RESEARCH CTR.

(Feb. 5, 2018), available at

http://www.pewinternet.org/factsheet/mobile ......................................................... 23

Nirajj Chokshi, Ferguson-related

charges dropped against Washington

Post and Huffington Post reporters,

WASH. POST (May 19, 2016),

available at

https://www.washing_tonpost.com/ne

ws/postnation/wp/2016/05/19/fergu_sonrelated-charges-dropped-againstwashington-post-and-huffingtonpost-reporters/?utm_term=.

c18183a7914a ....................................................... 11

Sara Rafsky, At Occupy Protests, U.S.

Journalists Arrested, Assaulted,

COMM. TO PROTECT JOURNALISTS,

(Nov. 11, 2011), available at

http://bit.ly/2i2Mblp ............................................. 11

xi

Sarah Matthews, Press Freedoms in the

United States 2017 at 4, PRESS

FREEDOM TRACKER (March 27, 2018),

available at

https://www.rcfp.org/sites/default/file

s/

docs/20180403_100407_press_freedo

ms_in_the_us_2017.pdf........................................ 10

Shelley Hepworth, Tracking Trump-Era

Assault on Press Norms, COLUMBIA

JOURNALISM REVIEW, (May 25, 2017),

available at

https://www.cjr.org/watchdog/trackin

g-trump-assault-press-freedommedia-attack.php ................................................... 7

Steve Myers, News Photographer

Arrested on Long Island for

Videotaping Police, POYNTER, (Aug.

2, 2011), available at

http://bit.ly/2i2zBmi ............................................. 13

Tasneem Raja, Tracking Journalists

Arrested at Occupy Protests, MOTHER

JONES (Nov. 18, 2011), available at

https://www.motherjones.com/politic

s/2011/11/tracking-journalistsarrests-occupy-protests/ ....................................... 11

Tim Perry, CBS News Journalist

Relives His Arrest at a Chicago

Trump Event, CBSNEWS.COM, (Nov.

14, 2016), available at

http://cbsn.ws/2i0ihvJ .......................................... 14

xii

Times Photographer Is Arrested on

Assignment, NEW YORK TIMES, (Aug.

5, 2012), available at

http://nyti.ms/2hk8W4U ...................................... 13

Tom Burton, Photojournalists Arrested

at Protests Work to Have Confiscated

Gear Returned, NPPA.ORG (Mar. 3,

2017), available at

https://nppa.org/news/confiscatedcameras-returned ................................................. 10

Tom Sherwood, Journalists Handcuffed,

Removed from Taxi Commission

Meeting, NBC4 WASHINGTON (June

22, 2011), available at

http://bit.ly/2h9JeLD ............................................ 14

U.S. PRESS FREEDOM TRACKER,

available at

https://pressfreedomtracker.us/arres

t-criminal-charge (last visited Oct. 4,

2018) ................................................................... 3, 9

1

INTEREST OF AMICI CURIAE 1

Amici, described in Appendix A, include a broad

array of the nation’s leading news organizations and

press advocacy groups, including lead amicus

National Press Photographers Association (NPPA).

The membership of NPPA, the nation’s leading

professional organization for photojournalists,

includes photographers, members of the press

generally, and citizen journalists, on whose behalf

the NPPA advocates in disputes involving

interference with First Amendment rights to report

on news and matters of public interest.

The interest of Amici in this case is to ensure that

the crucial role members of the press and citizen

reporters play in promoting discussion of matters of

public concern is properly accounted for.

The

question presented in this case is of particular importance to the press, whose institutional role is to serve

as a watchdog and check on government. If probable

cause bars claims for retaliatory arrests, the government will be given unbridled discretion that can be

used to chill and intimidate journalists.

SUMMARY OF ARGUMENT

This case arises from an arrest for disorderly

conduct at a remote outdoor festival in Alaska, but

the question presented—depending on how broadly

1

All parties have consented to this amicus curiae brief

through letters of consent filed with the Clerk. No counsel for a

party authored this brief in whole or in part, and no person or

entity other than Amici and their counsel made a monetary

contribution to the preparation or submission of this brief.

2

or narrowly it is answered—may have far-reaching

implications for freedom of the press. The specific

factual circumstances giving rise to this case make it

a poor vehicle for definitely resolving the question

presented for a wide range of cases. 2 But if the mere

existence of probable cause to make an arrest for any

offense precludes constitutional claims alleging First

Amendment retaliation for the exercise of free

speech, police officers, public officials they act for,

and the government obtain an insurmountable

advantage in the balance of equities and the ability

to turn a shield into a sword for use in deterring or

suppressing public criticism.

These issues are of vital importance to members

of the press, whose institutional role is to serve as a

2 Amici have serious concerns regarding whether the Court may

have improvidently granted certiorari in this case. We note

that Respondent Bartlett’s First Amendment claim is premised

largely on his assertion that he was arrested for refusing to

speak with Sergeant Nieves. See, e.g., J.A. 284-85. And it was

this allegation that formed the basis of the Ninth Circuit

decision under review. See Pet. App. at 6 (“Bartlett alleged that

Sergeant Nieves said ‘bet you wish you would have talked to me

now’ after his arrest. This statement, if true, could enable a

reasonable juror to find that Sergeant Nieves arrested Bartlett

in retaliation for his refusal to answer Sergeant Nieves’

questions earlier in the evening.”). There is, of course, a

constitutional right under the Fifth Amendment to not speak to

law enforcement officers, Malloy v. Hogan, 378 U.S. 1, 8 (1964),

but this Court has never passed on whether the First

Amendment also protects such refusal to speak with police.

While Amici believe the question presented in this case—

whether probable cause bars any First Amendment retaliatory

arrest claim—is an important one which merits consideration

by the Court, it should be decided on a more appropriate set of

facts.

3

check on government. As Justice Black wrote, the

Framers of the Constitution “gave the free press the

protection it must have to fulfill its essential role in

our democracy. The press was to serve the governed,

not the governors. The Government’s power to

censor the press was abolished so that the press

would remain forever free to censure the Government.” New York Times Co. v. United States, 403

U.S. 713, 717 (1971) (Black, J., concurring). When

the press performs this vital role, “‘the state has a

special incentive to repress opposition and often

wields a more effective power of suppression.’” First

National Bank of Boston v. Bellotti, 435 U.S. 765,

777 n.11 (1978) (quoting Thomas Emerson, TOWARD

A GENERAL THEORY OF THE FIRST AMENDMENT 9

(1966)). Given this dynamic, the threat of retaliatory

arrests without constitutional recourse is particularly chilling, because “law enforcement officials …

are granted substantial discretion that may be

misused to deprive individuals of their liberties.”

Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).

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. In

2017 alone, 34 journalists were arrested while trying

to document or report the news, see U.S. PRESS

FREEDOM

TRACKER,

available

at

https://pressfreedomtracker.us/arrest-criminalcharge (last visited Oct. 4, 2018), and in the past

4

several years, many more have been arrested

covering such events as unrest during the

presidential inauguration, the Occupy Wall Street

demonstrations,

confrontations

in

Ferguson,

Missouri, and the Black Lives Matter movement. In

almost all of those cases the charges against arrested

journalists were either dropped or dismissed,

regardless of probable cause.

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. Generalized laws aimed at

preserving public order—such as disorderly conduct

or disturbing the peace—give police virtually

uncabined discretion in deciding who should be

arrested and who may be allowed to report without

interference. This Court has held on numerous

occasions that such discretion can be misused and

First

Amendment

protections

undermined,

particularly where press coverage is unwelcome to

those in authority.

If the Court reaches the merits, it should hold

that probable cause does not strictly bar claims

alleging First Amendment retaliation, and should

adopt a standard that appropriately accommodates

the needs of law enforcement while adequately

preserving constitutional protections for free speech

and press. Such a test was articulated in Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274 (1977), where, once a plaintiff has shown a

censorial motive, the burden shifts to the government to show it would have taken the same action

5

regardless.

Such an 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.

ARGUMENT

I.

FREEDOM OF THE PRESS IS AT RISK IF

PROBABLE CAUSE SERVES AS AN

ABSOLUTE BAR TO FIRST AMENDMENT

RETALIATION CLAIMS

While Amici recognize that the case at bar does

not concern press freedoms – and indeed only

arguably presents a colorable First Amendment

retaliation claim – both parties contend that the

question presented is whether probable cause acts as

a complete bar to any First Amendment retaliation

claim under 42 U.S.C. § 1983. See Pet. Br. at i; Resp.

Br. at i. Because members of the press are uniquely

affected by police and government retaliation against

their First Amendment-protected activities, the

answer to this question will have an immediate,

significant, and lasting impact upon Amici.

Because the very purpose of a free press is to act

as a restraint on runaway governmental power in

our system of checks and balances, it is commonplace

for those who exercise that power to take

offense. Such hostility to the press is not new, nor is

it confined to any political party or level of

government. The Obama Administration prosecuted

more people for leaks to the press than all previous

6

presidential administrations combined; 3 President

Nixon had his “Enemies List” 4 and approved direct

and indirect assaults on the press; 5 Governor George

Wallace of Alabama regularly castigated journalists; 6 and Louisiana Governor Huey Long tried to

impose a special tax on urban newspapers that he

3

Joel Simon, Barack Obama’s Press Freedom Legacy,

COLUMBIA JOURNALISM REVIEW, (April 3, 2015), available at

https://www.cjr.org/criticism/barack_obamas_press_freedom_leg

acy.php (“the Obama administration has prosecuted more

leakers under the 1917 Espionage Act than all former

presidents combined”).

4

List of White House ‘Enemies’ and Memo Submitted by

White House Counsel John Dean to the Ervin Committee, Facts

on File, Watergate and the White House, vol. 1, pp. 96-97,

available at https://www.colorado.edu/AmStudies/lewis/film/

enemies.htm (list included political enemies as well as more

than 50 newspaper and TV reporters).

5

James T. Hamilton, Attacks on the Press Have Helped

Bring Down a President Before, WASHINGTON MONTHLY, (Jan.

12, 2017), available at https://washingtonmonthly.com/

2017/01/12/nixon-and-trump-past-as-prologue (Nixon “approved

illegal wiretaps to listen into the phone conversations of

journalists critical of the administration. His Justice

Department lodged antitrust charges against the three

broadcast networks. He asked FBI Director J. Edgar Hoover to

develop ‘a run down on the homosexuals known and suspected

in the Washington Press Corps.’”).

6

Howell Raines, George Wallace, Segregation Symbol, Dies

at 79, NEW YORK TIMES, (Sept. 14, 1998), available at

https://www.nytimes.com/1998/14/us/George-wallacesegregation-symbol-dies-at-79.html (Wallace’s “expurgated list

of demons” included “liberals, Communists, the Eastern press,

Federal judges, [and] ‘pointy-headed intellectuals.’”).

7

called a “tax on lying.” 7 The current occupant of the

White House has branded the press as the “enemy of

the American people” and posted videos of himself

wrestling an anthropomorphized news network to

the ground. 8

A contentious relationship between government

and the press is by design. However, it presents a

constitutional problem if the government has at its

disposal a legal means of facilitating acts of

retaliation, and of defeating efforts to vindicate

constitutional rights in court. In particular, news

gathering can be disrupted where arrests can be

used as a “catch and release” technique, and the

press can be chilled into inaction even if there is no

prosecution. Such concerns arise in a variety of

circumstances.

7

Elizabeth Kolbert, The Big Sleazy, THE NEW YORKER, (June

12, 2006), available at www.newyorker.com/magazine/

2006/06/12/the-big-sleazy (“Long proposed (and, of course, got

passed) a tax on advertising sales by newspapers with a

circulation exceeding twenty thousand. The tax affected

primarily the large dailies in New Orleans, which had always

opposed him.”); see Grosjean v. American Press Co., Inc., 297

U.S. 233, 250 (1936) (“[T]his is not an ordinary form of tax, but

one single in kind, with a long history of hostile misuse against

the freedom of the press.”).

8

See, e.g., Shelley Hepworth, Tracking Trump-Era Assault

on Press Norms, COLUMBIA JOURNALISM REVIEW, (May 25,

2017), available at https://www.cjr.org/watchdog/tracking-

trump-assault-press-freedom-media-attack.php; Michael M.

Grynbaum, Trump, in Latest Bout With Media, Conjures

Physical Fight With a Foe, NEW YORK TIMES, (July 3, 2017) at

A10.

8

A. Retaliation for Unfavorable Press Coverage

In this country, it is rare for a public official to

arrest a journalist for publishing a critical story—

this is not Russia or Turkey—but it does happen.

Sheriff Joe Arpaio of Arizona arrested the publishers

of Phoenix New Times for publishing articles that

probed the sheriff’s commercial real estate holdings

and that exposed the sheriff’s abusive investigation

of the newspaper. Lacey v. Maricopa County, 693

F.3d 896, 907-09 (9th Cir. 2012) (en banc). As the

Ninth Circuit observed, “[i]t is hard to conceive of a

more direct assault on the First Amendment than

public officials ordering the immediate arrests of

their critics.” Id. at 917.

Sheriff Arpaio shopped around several county

prosecutors until he found one willing to investigate

the newspaper.

A compliant Special Deputy

Maricopa County Attorney was appointed who took

action against New Times, first by sending

subpoenas demanding, among other things,

information on confidential sources, reporters’ and

editors’ notebooks, memoranda and other documents

for any story critical of Arpaio. Id. at 909. After

New Times ran a story revealing the subpoena’s

demands, Arpaio’s “Selective Enforcement Unit”

staged a nighttime raid and arrested the publishers

in their homes. Id. at 910.

The publishers brought a civil rights claim

pursuant to 42 U.S.C. § 1983 and the Ninth Circuit

denied the defendants’ qualified immunity defense.

The court did not address the issue raised in this

case, whether a probable cause finding would have

barred bringing any First Amendment retaliation

9

claims. 693 F.3d at 917 n.8. Ultimately, it found the

arrests were not supported by probable cause. Id. at

919. However, if probable cause had existed to make

an arrest, then First Amendment retaliation claims

arguably would have been entirely barred even on

these egregious facts. 9

In Reichle v. Howards, 566 U.S. 658, 668-69

(2012), this Court stopped short of finding that

probable cause was sufficient to bar First

Amendment claims for retaliatory arrests for good

reason.

The Court observed that “in many

retaliatory arrest cases, it is the officer bearing the

alleged animus who makes the injurious arrest.” Id.

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.

B.

Arrests While Covering Public Protests

or Documenting Police Misconduct

The risk of retaliatory arrest is particularly acute

for reporters and news photographers covering public

protests or recording police activity. In 2017, at least

34 journalists were arrested while seeking to

document or report news. see U.S. PRESS FREEDOM

TRACKER,

available

at

9

Arizona law prohibits unauthorized disclosure of matters

relating to a grand jury proceeding, and New Times had

published the substance of the subpoenas that had been issued

pursuant to Arpaio’s retaliatory investigation. However, the

court held that probable cause was lacking because the

subpoenas had not been validly issued as part of a grand jury

proceeding. Lacey, 693 F.3d at 918-19. See id. at 923-24.

10

https://pressfreedomtracker.us/arrest-criminalcharge (last visited Oct. 4, 2018). The few examples

provided below illustrate that it is not uncommon for

police officers to arrest journalists for attempting to

gather news from the midst of civil unrest, or for

persistently asking questions of public officials or

videotaping police as they perform duties in public.

Large-scale protests have become a defining

feature of the last five years in the life of this nation,

but dubious arrests have greatly hindered the ability

of journalists “on the ground” to provide the public a

much-needed window onto scenes of civil unrest. For

instance, in early 2017, police arrested nine journalists covering the violent protests that attended

President Trump’s inauguration. See Jaclyn Peiser,

Journalist Swept Up in Inauguration Day Arrests

Faces Trial, NEW YORK TIMES (Nov. 14, 2017),

available at https://www.nytimes.com/2017/11/14/

business/media/alexei-wood-journalist-trialinauguration.html. Prosecutors ultimately dropped

the charges against seven of the nine journalists.

One of Amicus NPPA’s members was also arrested

while covering that inauguration day protest. His

cameras, film, and digital media files were seized,

preventing those images from being timely

published, and effecting a prior restraint on the

materials.

It was not until months later that

prosecutors dropped all charges and returned most

(but not all) of his equipment and digital files. See

Tom Burton, Photojournalists Arrested at Protests

Work to Have Confiscated Gear Returned, NPPA.ORG

(Mar. 3, 2017), available at https://nppa.org/news/

confiscated-cameras-returned.

See also Sarah

Matthews, PRESS FREEDOM TRACKER, Press Freedoms

11

in the United States 2017 at 4 (March 27, 2018),

available at https://www.rcfp.org/sites/default/files/

docs/20180403_100407_press_freedoms_in_the_us_2

017.pdf (reporting that “85 percent of arrests [of

journalists in 2017] occurred at protests”).

These kinds of “catch and release” arrests are not

unusual. Officers arrested a number of reporters

covering Black Lives Matter protests in Ferguson

and St. Louis, Missouri, including reporters for the

Washington Post and Huffington Post, leading to

dropped charges in each case.

Nirajj Chokshi,

Ferguson-related

charges

dropped

against

Washington Post and Huffington Post reporters,

WASH. POST (May 19, 2016), available at

https://www.washingtonpost.com/news/postnation/wp/2016/05/19/ferguson-related-chargesdropped-against-washington-post-and-huffingtonpost-reporters/?utm_term=. c18183a7914a.

Between 2011 and 2012, more than 90 journalists

were arrested while reporting at Occupy Wall Street

protests that occurred around the country. Tasneem

Raja, Tracking Journalists Arrested at Occupy

Protests, MOTHER JONES (Nov. 18, 2011), available at

https://www.motherjones.com/politics/

2011/11/tracking-journalists-arrests-occupy-protests;

see also, Sara Rafsky, At Occupy Protests, U.S.

Journalists Arrested, Assaulted, COMM. TO PROTECT

JOURNALISTS, (Nov. 11, 2011), available at

http://bit.ly/2i2Mblp.

A judge in North Dakota

dismissed riot charges for lack of evidence after a

radio journalist was arrested while covering protests

against the Dakota Access pipeline. Erin McCann,

Judge Rejects Riot Charge against Amy Goodman of

12

‘Democracy Now’ Over Pipeline Protest, NEW YORK

TIMES

(Oct.

17,

2016),

available

at

https://www.nytimes.com/2016/10/18/

us/judgerejects-riot-charge-against-amy-goodman-ofdemocracy-now-over-pipeline-protest.html.

By

retaliating against journalists, the police can—and

all too often do—prevent journalists from reporting

events occurring at the front lines of public protests,

where violent confrontations with police are most

likely to occur, and where press scrutiny is most

needed.

Dubious arrests also have prevented journalists

from tenaciously questioning government officials in

public places. On May 9, 2017, a reporter was

arrested in the West Virginia State Capitol building

for shouting questions at the Secretary of the

Department of Health and Human Services, Tom

Price, as he walked through a public hallway with

Counselor to the President of the United States,

Kellyanne Conway. The reporter was charged with

willful disruption of governmental processes, but this

charge was dropped after prosecutors determined no

crime had been committed. Matt Stevens, Charge

Dropped against Reporter Who Questioned Tom

Price, NEW YORK TIMES (Sept. 6, 2017), available at

https://www.nytimes.com/2017/09/06/business/media/

tom-price-journalist-arrest.html.

Photojournalists are particularly vulnerable to

retaliatory arrests when filming police activity in

public. In one instance, a news photographer was

acquitted of disorderly conduct after being thrown to

the ground and arrested for unobtrusively photographing police officers assisting the issuance of

13

liquor citations to two men. See Andrew Metcalf,

BETHESDA MAG. (Mar. 8, 2017), Montgomery County

Settles

First

Photographer,

Amendment

Lawsuit

available

with

at

http://www.bethesdamagazine.com/BethesdaBeat/2017/Montgomery-County-Settles-FirstAmendment-Lawsuit-with-Photographer. In another

case, Detroit Police arrested a press photographer

after she photographed officers escorting a suspect

into a police car and confiscated her phone, although

no charges were ever filed.

WWJ/AP, Freep

Photographer Arrested While Recording An Arrest,

CBSLOCAL.COM (July 16, 2013), available at

https://detroit.cbslocal.com/2013/07/16/freepphotographer-arrested-while-recording-an-arrest/.

In yet another instance, a credentialed Long Island

news videographer was arrested and charged with

obstructing

governmental

administration

for

videotaping police activity from a public street in the

midst of other bystanders. Steve Myers, News

Photographer Arrested on Long Island for

Videotaping Police, POYNTER, (Aug. 2, 2011),

available at http://bit.ly/2i2zBmi (noting that the

charge was later dropped). In August of 2012, a

photographer on assignment for The New York

Times was arrested and charged with obstructing

government administration and resisting arrest for

photographing the arrest of a teenage girl in the

Bronx. Times Photographer Is Arrested on Assignment, NEW YORK TIMES, (Aug. 5, 2012), available at

http://nyti.ms/ 2hk8W4U. Recently, Denver police

officers arrested the editor of the Colorado

Independent for taking photographs of those officers

standing by a naked man whom they had handcuffed

on a city sidewalk. Elise Schmelzer, Denver Officer

14

Accused of Detaining Colorado Journalist Faces No

Charges, DENVER POST, (Aug. 23, 2018), available at

https://www.denverpost.com/2018/08/23/denverpolice-detained-journalist-no-charges/. 10

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. 11 All told, the

risk of police interference with and arrest of

Retaliatory arrests are not limited to police officers trying

to stop the filming of their own activities. Press photographers

and videographers also have been arrested for unwelcome

attempts to record public hearings and events. See, e.g., Tom

Sherwood, Journalists Handcuffed, Removed from Taxi

Commission Meeting, NBC4 WASHINGTON (June 22, 2011),

available at http://bit.ly/2h9JeLD; Matt Hamilton, L.A. Times

10

Photographer Arrested After Covering Nancy Reagan Funeral

Motorcade, L.A. TIMES, (March 9, 2016), available at

http://lat.ms/1QFntAG; Tim Perry, CBS News Journalist

Relives His Arrest at a Chicago Trump Event, CBSNEWS.COM,

(Nov. 14, 2016), available at http://cbsn.ws/2i0ihvJ.

E.g., Glik, 655 F.3d at 82-83 (“Ensuring the public’s right

to gather information about their officials not only aids in the

uncovering of abuses, but also may have a salutary effect on the

functioning of government more generally.”) (internal citations

omitted). See also Turner v. Lieutenant Driver, 848 F.3d 678,

689 (5th Cir. 2017) (“Filming the police contributes to the

public’s ability to hold the[m] accountable, ensure that []

officers are not abusing their power, and make informed

decisions about police policy.”). “Every Circuit Court of Appeals

to address this issue (First, Fifth, Seventh, Ninth, and

Eleventh) has held there is a First Amendment right to record

police activity in public” and “we join this growing consensus.”

Fields v. City of Philadelphia, 862 F.3d 353, 355-56 (3d Cir.

2017) (collecting cases).

11

15

journalists performing their duties is not an esoteric

or hypothetical concern.

II.

THE COURT SHOULD ADOPT A STANDARD THAT APPROPRIATELY BALANCES

THE NEEDS OF LAW ENFORCEMENT

WITH FIRST AMENDMENT VALUES

A.

The Power to Make Arrests Can

Disrupt Newsgathering and Other

First Amendment Activities

The power to make arrests is the state’s most

direct and tangible limit on individual liberty. The

impact of its misuse is magnified when employed to

retaliate against and deter protected speech. When

it comes to the press, arrests can be used to disrupt

the exercise of First Amendment speech and press

rights. Any retaliatory arrest immediately halts

newsgathering

activity

and

contemporaneous

reporting of events. The cost, time commitment,

effort and distraction imposed on journalists and

press organizations to address the fallout of arrests

also detract from reporting activity.

Such interference with reportage cannot be

remedied in full by post hoc remedies. See, e.g., In re

King World Prods., Inc., 898 F.2d 56, 59 (6th Cir.

1990) (“even minimal interference with first amendment freedoms causes an irreparable injury”) (citing

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559

(1976); Elrod v. Burns, 427 U.S. 347, 373-74 (1976)).

However, the ability to bring civil rights claims can

help ameliorate these burdens and provide muchneeded deterrence of police misconduct—provided, of

course, that presence of probable cause to arrest is

16

not a bar to doing so. It is particularly important

that a potential First Amendment remedy be

available where the government may attempt to

dissuade reporters or photographers from covering

events where there exists the possibility of public

disorder and clashes between citizens and police.

In such circumstances, the police may be tempted

to invoke general laws such as breach of peace (i.e.,

disorderly conduct), obstructing public ways, failure

to comply with a peace officer, or loitering to justify

arrests, particularly where there may be unfavorable

press coverage. Arrests based on probable cause for

violating offenses of such generalized and broad

scope can be especially threatening to First Amendment activities as they are “susceptible to abuses of

discriminatory application.” E.g., Cox v. Louisiana,

379 U.S. 536, 551, 554-55 (1965). See also Shuttlesworth v. City of Birmingham, 382 U.S. 87, 93 (1965)

(amorphous offenses become “so broad as to evoke

constitutional doubt of the utmost gravity”).

With the breadth of such laws and the ease of

asserting probable cause for their violation, minor

offenses can easily be used as a pretext for a speechhalting arrest. As a consequence, the “lodging of

such broad discretion in a public official allows him

to determine which expressions of view will be

permitted and which will not.” Cox, 379 U.S. at 557.

This creates “a device for the suppression of the

communication of ideas and permits the official to

act as a censor.” Id. If the presence of asserted

probable cause for such offenses were sufficient to

serve as an absolute bar to First Amendment claims,

17

law enforcement would have far too much leeway to

curtail protected expression. 12

Indeed, the United States Department of Justice

has noted that these kinds of “discretionary charges,

such as disorderly conduct, loitering, disturbing the

peace, and resisting arrest, are all too easily used to

curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights,”

such that “courts should view such charges

skeptically.” Dep’t of Justice Statement of Interest,

Garcia v. Montgomery County, 2013 WL 4539394 (D.

Md. Aug. 23, 2013), No. JFM-12-3592, at 1. See also

Patterson v. United States, 999 F. Supp. 2d 300, 314

(D.D.C. 2013) (citing propensity of “‘contempt of cop’

arrests” and “widespread practice of [] officers using

[] disorderly conduct law to arrest … without a

legitimate basis”).

12

This Court has recognized the need to limit such discretion

in numerous cases. See, e.g., City of Houston, TX, v. Hill, 482

U.S. 451, 465 (1987) (“we have repeatedly invalidated laws that

provide the police with unfettered discretion to arrest

individuals for words or conduct that annoy or offend them");

Kolender v. Lawson, 461 U.S. 352, 360-61 (1983) (identification

requirement unconstitutional because it accords police “full

discretion”); Smith v. Goguen, 415 U.S. 566, 575 (1974)

(“Statutory language of such a standardless sweep allows

policemen, prosecutors, and juries to pursue their personal

predilections” thereby “entrusting lawmaking ‘to the momentto-moment judgment of the policeman on his beat’”) (quoting

Gregory v. Chicago, 394 U.S. 111 (1969) (Black, J., concurring));

Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972)

(vagrancy ordinance “furnishes a convenient tool for ‘harsh and

discriminatory enforcement by local prosecuting officials,

against particular groups deemed to merit their displeasure’”)

(quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)).

18

Such concerns are magnified if the police can try

to justify an arrest after-the-fact with “arguable

probable cause.” Here, for example, at the time of

the arrest the officers told Bartlett that he was under

arrest for harassment. The State never charged him

with harassment, however, instead, charging him

with disorderly conduct and resisting or interfering

with arrest—before ultimately dropping all charges.

Pet. App. 12-14. In Lozman v. City of Riviera Beach,

Fla., 138 S. Ct. 1945 (2018), the state likewise

switched theories on what law Lozman supposedly

had violated and for which they had probable cause

for his arrest midway through the trial. See id. at

1950 (district court allowed defendants to raise a

previously unraised charge). Similarly, in Garcia,

although the plaintiff had been arrested (and

acquitted) on charges of disorderly conduct, in the

ensuing civil litigation the police claimed they should

not be held to account on the theory that probable

cause might have existed to bring other charges. 13

While retaliatory prosecution cases have a charging

instrument that governs any probable cause inquiry,

as Garcia illustrates, arresting officers are not similarly constrained, see Garcia, 145 F. Supp. 3d at 519

(citing Devenpeck v. Alford, 543 U.S. 146, 153

(2004)),

and

Section 1983

law

enforcement

defendants are thus free to “move the goalposts” in

ensuing civil litigation for retaliatory arrests.

13

Garcia, 145 F. Supp. 3d 492, 517-21 (D. Md. 2015)

(rejecting County theories in ensuing civil case that arrest was

justified by probable cause for hindering arrest of third parties

and/or second degree assault, as lacking objectively reasonable

bases).

19

The great latitude officers enjoy to make arrests

where they can cite something—anything—that

serves as probable cause is unduly magnified if legal

recourse is blocked by such recitation; this creates

the wrong kinds of incentives. Under qualified

immunity principles, officers already are immunized

from potential liability except where they knowingly

violate clearly established constitutional rights,

Malley v. Briggs, 475 U.S. 335, 341 (1986)—and this

immunity extends to arrests made without probable

cause, see Reichle, 566 U.S. at 664-65. So too, law

enforcement agencies cannot be held liable unless an

unlawful arrest is pursuant to department custom or

policy. Monell v. N.Y.C. Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978). For cases that clear these

hurdles, holding that probable cause to arrest

defeats a First Amendment claim further contracts

the ability of the press and public to remedy

constitutional violations.

This leaves journalists, photographers, citizen

reporters and others with even less opportunity to

vindicate their rights.

It also instructs law

enforcement officers that, even if they know they are

violating well-settled rights, no liability will attach

so long as they can articulate some probable cause

for arrest, even after the fact.

This, in turn,

emboldens police to make constitutionally infirm

arrests and disincentivizes law enforcement agencies

from properly training and disciplining their officers.

Altogether, these factors increase the incidence of

arrests that interfere with the exercise of basic First

Amendment rights.

20

B.

The Burden Shifting Framework of Mt.

Healthy City School District Board of

Education v. Doyle Strikes the Correct

Constitutional Balance

Under longstanding First Amendment analysis,

the government has no legitimate power to retaliate

against individuals for engaging in constitutionally

protected activity.

Public schools may not fire

teachers for criticizing administrators, Perry v.

Sindermann, 408 U.S. 593 (1972); prison officials

may not divert prisoners’ mail as punishment for

speaking to the press, Crawford-El v. Britton, 523

U.S. 574 (1998); and agencies may not demote

employees for their political affiliations. Heffernan

v. City of Paterson, 136 S. Ct. 1412 (2016). Bottom

line, official reprisal for protected activity “offends

the Constitution,” Crawford-El v. Britton, 523 U.S.

at 588 n.10, and is subject to recovery, Hartman v.

Moore, 547 U.S. 250, 256 (2006).

At the same time, the Court has long been

sensitive to the potential for retaliation lawsuits to

hamstring effective administration of government.

Permitting recovery whenever government action is

motivated in any part by improper animus risks

preventing the government from acting in the public

interest. Mt. Healthy, 429 U.S. at 285. A school

administration should not be disabled from

terminating an underperforming teacher just

because he (or she) happens to engage in protected

speech with which the administration disagrees. Id.

So too has the Court acknowledged the costs of

the unique evidentiary burdens retaliation claims

place on public officials. Improper animus is “easy to

21

allege and hard to disprove.” Crawford-El, 523 U.S.

at 585. Retaliation suits therefore may be less

amenable to summary disposition and “implicate

obvious concerns with the social costs of subjecting

public officials to discovery and trial, as well as

liability for damages.” Id.

To address these problems, this Court long ago

fashioned a burden-shifting framework designed to

“protect[] against the invasion of constitutional

rights without commanding undesirable consequences not necessary to the assurance of those rights.”

Mt. Healthy, 429 U.S. at 287. Under the Mt.

Healthy test, the plaintiff bears the initial burden of

demonstrating unconstitutional animus was a motivating factor of an adverse action; the burden then

shifts to the defendant to demonstrate that even

without the impetus to retaliate the defendant would

have taken the action complained of. Id.

The Mt. Healthy test strikes the appropriate constitutional balance for the vast majority of retaliation

claims. In effect, it narrows availability of recovery

to cases where unconstitutional animus is the but-for

cause of official action and ensures that defendants

have an adequate opportunity to defend against

frivolous claims at summary judgment. Most importantly, it ensures that an individual “is placed in no

worse a position than if he had not engaged in the

[protected] conduct.” Id. at 285-86.

The Mt. Healthy test is particularly appropriate

in First Amendment retaliatory arrest cases and

neatly affords the presence or absence of probable

cause due evidentiary weight. No doubt, officers

offend the Constitution whenever they arrest an

22

individual in order to inhibit or penalize the exercise

of First Amendment freedoms. That is true regardless of whether there exists probable cause, if the

arrest would not have occurred but for the protected

activity. Cf. Mt. Healthy, 429 U.S. at 283-84 (even

when a public employee may be discharged for no

reason, the government may not discharge the

employee because of their protected speech); Perry,

408 U.S. at 597 (the government may not deny plaintiff a benefit because of his protected speech, even if

it could properly deny it for another reason).

Evidence of the presence or absence of probable

cause to arrest will be available to officers in

“virtually every retaliatory arrest case,” Reichle, 566

U.S. at 668, and an officer may raise it as a defense

to any claim of retaliation. Indeed, the increased

availability of video evidence, from police-worn body

cameras, dashcams, surveillance video or bystanders

who can record audio and/or video with cellphones,

only strengthens the evidence that will be available

to arresting officers. “Nearly every large police

department” has either adopted police-worn body

cameras or plans to. 14 More than three-quarters of

Americans own a smartphone, which contain videocapable cameras as a matter of course. 15

14 Mike Maciag, Survey: Almost All Police Departments Plan to

Use Body Cameras, GOVERNING (Jan. 26. 2016), available at

http://www.governing.com/topics/public-justice-safety/govpolice-body-camera-survey.html.

Mobile Fact Sheet, PEW RESEARCH CTR. (Feb. 5, 2018),

available at http://www.pewinternet.org/fact-sheet/mobile.

15

23

This widely available documentary evidence

makes summary judgment dispositions significantly

more likely. More than a decade ago, in Scott v.

Harris, the Court explicitly held that a video

documenting the events giving rise to a Section 1983

claim entitled the defendant police officer to

summary judgment, notwithstanding the claimant’s

divergent statement of the facts. 550 U.S. 372, 38081 (2007). Federal Courts of Appeals ruling on First

Amendment retaliation claims have also recognized

the exculpatory potential of video evidence as one of

the broader public benefits served by its

proliferation. See Turner, 848 F.3d at 689 (“Filming

the police also frequently helps officers; for example,

a citizen’s recording might corroborate a probable

cause finding or might even exonerate an officer

charged with wrongdoing”). See also Glik, 655 F.3d

at 82-83 (the ability to record police “serves a

cardinal First Amendment interest in protecting and

promoting the free discussion of governmental

affairs,” and “not only aids in the uncovering of

abuses, but also may have a salutary effect on the

functioning of government more generally.”)

(citations and quotation marks omitted). 16

Chief Justice Roberts recognized the potent evidentiary

value of videography in First Amendment retaliation claims

during oral argument in Lozman, commenting on a video of the

petitioner’s alleged unlawful arrest: “[R]egardless of what

happened before or after, I found the video pretty chilling. I

mean, the fellow is up there for about 15 seconds, and the next

thing he knows, he’s being led off in -- in -- in handcuffs,

speaking in a very calm voice the whole time.” Transcript of

Oral Argument at 34:15-21, Lozman, 138 S. Ct. 1945 (No. 1721).

16

24

The increasingly widespread availability of

exculpatory video evidence may be “fatal” to many

plaintiffs’ ability to prove the requisite but-for

causation element of a retaliatory arrest claim.

Reichle, 566 U.S. at 668. And, where appropriate,

courts presented with clear evidence will have little

difficulty resolving claims at an early stage. In fact,

only a few months ago the Second Circuit held that

applying the Mt. Healthy standard would still

require affirming summary judgment to a police

officer in a Section 1983 retaliatory arrest claim,

where the record could not support the plaintiff’s

claim that his First Amendment-protected activity

was a “but-for” cause of his arrest. See Higginbotham

v. Sylvester, No. 16-3994, 2018 WL 3559116, at *2

(2d Cir. July 25, 2018). Any concern that Mt.

Healthy would open the “floodgates” of retaliatory

arrest litigation is therefore misplaced. Under the

Mt. Healthy framework, arrestees, like public

employees, are left in no worse a position than if they

had not engaged in protected conduct.

In contrast, requiring arrestees to demonstrate

an absence of probable cause would decisively tip the

scales in favor of defendants, enabling police to

indirectly censor and penalize the exercise of First

Amendment freedoms in ways the government could

not directly command. A rule that probable cause

bars a retaliatory arrest claim would immunize

government actions that plainly offend the First

Amendment.

That probable cause would bar a Fourth Amendment challenge is irrelevant. The Court already has

made clear that an arrest which is lawful under the

25

Fourth Amendment may nevertheless violate other

constitutional rights. In Village of Arlington Heights

v. Metro. Hous. Dev. Corp., this Court acknowledged

that the Mt. Healthy test governs retaliation claims

premised on alleged racial discrimination. 429 U.S.

252, 270, n.21 (1977). And in Whren v. United

States, it clarified that the Constitution prohibits

selective law enforcement based on race,

notwithstanding the existence of probable cause. 517

U.S. 806, 813 (1996); see Reichle, 566 U.S. at 664 n.5.

If the existence of probable cause is no bar to an

Equal Protection challenge to an arrest, it should not

bar a First Amendment challenge.

Notably, retaliatory arrest claims feature none of

the attributes of retaliatory prosecution claims that

left this Court comfortable in imposing the burden of

alleging and proving lack of probable cause in

retaliatory prosecution claims in Hartman, 547 U.S.

250. Unlike retaliatory prosecution plaintiffs (and

retaliatory arrest defendants), retaliatory arrest

plaintiffs do not always have access to a distinct body

of highly valuable circumstantial evidence that is apt

to prove or disprove probable cause, because

retaliatory arrest plaintiffs often do not even know

the reason for their arrest. See Devenpeck, 543 U.S.

at 155 (police officers not constitutionally required to

state reasons for an arrest). More importantly, in

contrast to retaliatory prosecution claims, there is

generally no disconnect between animus and injury

in retaliatory arrest claims—“it is the officer bearing

the alleged animus who makes the injurious arrest.”

Reichle, 566 U.S. at 668-69. Nor is any presumption

of regularity accorded police officers’ arrest decisions

26

that is akin to the presumption of prosecutorial regularity. Id.

For these reasons, First Amendment retaliatory

arrest claims are best adjudicated under the standard Mt. Healthy rubric, and should not invariably

be defeated by a failure to allege and then prove a

lack of probable cause. The Mt. Healthy standard

preserves police officers’ ability to raise probable

cause as a defense while ensuring they are not

insulated from liability for purposefully abridging

and penalizing the exercise of the freedoms

guaranteed by the First Amendment.

CONCLUSION

The arrests of reporters and photographers

described in this brief “may have taken place in

America,” but they belong “to a society much

different and more oppressive than our own.”

Rossignol v. Vookhaar, 316 F.3d 516, 527-28 (4th Cir.

2003). The Court should adopt a legal standard that

makes clear it is “not for law enforcement to summon

the organized force of the sheriff’s office to the cause

of censorship.” Id. at 528. Toward that end, this

Court should affirm the decision below and hold that

probable cause does not bar First Amendment claims

for retaliatory arrests.

27

Respectfully submitted,

Robert D. Balin

Counsel of Record

Abigail B. Everdell

Davis Wright Tremaine LLP

21st Floor

1251 Avenue of the Americas

New York, New York 10020-1104

(212) 489-8230

Charles S. Sims

Media Freedom &

Information Access Clinic

Yale Law School

P.O. Box 208215

New Haven, CT 06520

Mickey H. Osterreicher

National Press Photographers

Association

120 Hooper Street

Athens, Georgia 30602

Counsel for Amici Curiae