Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule

Supreme Court briefJan 26, 2022

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No. 21-147

In The

Supreme Court of the United States

ERIK EGBERT,

Petitioner,

ROBERT BOULE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS IN

EDUCATION IN SUPPORT OF RESPONDENT

DARPANA SHETH*

KATLYN PATTON

GABE WALTERS

FOUNDATION FOR

INDIVIDUAL RIGHTS IN

EDUCATION

510 Walnut Street,

Suite 1250

Philadelphia, PA 19106

(215) 717-3473

darpana.sheth@thefire.org

katlyn.patton@thefire.org

gabe.walters@thefire.org

*Counsel of Record

Counsel for Amicus Curiae

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

QUESTIONS PRESENTED

1. Whether a cause of action exists under Bivens for

First Amendment retaliation claims.

2. Whether a cause of action exists under Bivens for

claims against federal officers engaged in immigration-related functions for allegedly violating a

Plaintiff’s Fourth Amendment rights.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........................................i

TABLE OF AUTHORITIES.........................................iv

INTEREST OF AMICUS CURIAE .............................. 1

SUMMARY OF ARGUMENT....................................... 2

ARGUMENT ..................................................................3

I. The Unavailability of Damages for First

Amendment Retaliation By Federal Officials

Chills Speech .............................................................3

II. Freedom of Speech Was Fundamental to the

Founding ...................................................................6

A. Early Americans relied on freedoms of speech

and the press as political tools .......................... 7

B. The Constitution and Bill of Rights were

drafted against the backdrop of the common

law ......................................................................15

III. Retaliation in Violation of the Fundamental

Right to Free Speech Is a Proper Bivens Claim 18

A. The Court’s current rule does not foreclose

a Bivens remedy for First Amendment

retaliation ..........................................................19

iii

B. A damages claim is the only available remedy

for past harms to speakers subjected to

retaliation by federal officials .........................22

C. Allowing Bivens claims for First Amendment

retaliation does not run afoul of the separation

of powers ............................................................25

D. The judiciary is well-suited to evaluate First

Amendment retaliation claims to remedy the

deprivation of a fundamental right ................29

CONCLUSION ............................................................31

TABLE OF AUTHORITIES

Cases:

Page(s)

Abrams v. United States,

250 U.S. 616 (1919) ............................................ 12, 13

Anders v. Cuevas,

984 F.3d 1166 (6th Cir. 2021) ..................................29

Aref v. Lynch,

833 F.3d 242 (D.C. Cir. 2016) ..................................29

Bates v. Clark,

95 U.S. (5 Otto) 204 (1877).......................................17

Beauharnais v. Illinois,

343 U.S. 250 (1952) ............................................ 10, 12

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005) ................................29

Bennie v. Munn,

822 F.3d 392 (8th Cir. 2016) ............................. 29, 30

Berger v. New York,

388 U.S. 41 (1967) .....................................................15

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics,

403 U.S. 388 (1971) ...........................................passim

Boule v. Egbert,

998 F.3d 370 (9th Cir. 2021) ....................... 19, 25, 27

Brandenburg v. Ohio,

395 U.S. 444 (1969) ...................................................13

Bridges v. Gilbert,

557 F.3d 541 (7th Cir. 2009) ....................................29

Brown v. Jones Cnty. Junior Coll.,

463 F.Supp.3d 742 (S.D. Miss. 2020) ......................29

Carlson v. Green,

446 U.S. 14 (1980) ........................................ 26, 27, 31

Cox v. Warwick Valley Cent. Sch. Dist.,

654 F.3d 267 (2d Cir. 2011)......................................29

Crawford-El v. Britton,

523 U.S. 574 (1998) ............................................ 14, 29

Davis v. Gray,

83 U.S. (16 Wall.) 203 (1872) ............................ 16–17

Davis v. Passman,

442 U.S. 228 (1979) ................................ 22, 26, 27, 31

D.B. v. Esposito,

675 F.3d 26 (1st Cir. 2012) .......................................29

Dyer v. Smith,

No. 3:19-cv-921, 2021 WL 694811 (E.D. Va. Feb.

23, 2021) .............................................................. 23, 31

Entick v. Carrington,

(1765) 95 Eng. Rep. 807 (K.B.) ................................17

Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938) .............................................. 17–18

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................................20

Hartman v. Moore,

547 U.S. 250 (2006) ...................................................30

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ........................19–20, 22, 26, 29

Himmelreich v. Federal Bureau of Prisons,

No. 4:10CV2404, 2019 WL 4694217 (N.D. Ohio

Sept. 25, 2019) .............................................. 22–23, 31

Illinois v. Gates,

462 U.S. 213 (1983) ...................................................14

Jerra v. United States,

No. 2:12-cv-01907-ODW, 2018 WL 1605563

(C.D. Cal. Mar. 29, 2018)................................... 23, 31

Jennings v. Town of Stratford,

263 F. Supp. 3d 391 (D. Conn. 2017) ......................24

Katz v. United States,

389 U.S. 347 (1967) ............................................ 14, 15

Keenan v. Tejeda,

290 F.3d 252 (5th Cir. 2002) ....................................29

Koala v. Khosla,

931 F.3d 887 (9th Cir. 2019) ....................................29

vii

Lauren W. ex rel. Jean W. v. DeFlaminis,

480 F.3d 259 (3d Cir. 2007)............................... 29, 31

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804)....................................17

Mahanoy Area Sch. Dist. v. B.L.,

141 S. Ct. 2038 (2021)...............................................14

Masses Publ’g Co. v. Patten,

246 F. 24 (1917) .........................................................13

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .................................................7–9

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................ 11–12

Nieves v. Bartlett,

139 S. Ct. 1715 (2019)...............................................30

Osborn v. Bank of the United States,

22 U.S. (9 Wheat.) 738 (1824) ..................................16

Pucci v. Somers,

834 F. Supp. 2d 690 (E.D. Mich. 2011) ...................24

Riley v. California,

573 U.S. 373 (2014) ............................................ 14–15

Schenck v. United States,

249 U.S. 47 (1919) .....................................................13

Silverman v. United States,

365 U.S. 505 (1961) ...................................................15

viii

Suarez Corp. Indus. v. McGraw,

202 F.3d 676 (4th Cir. 2000) ....................................29

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) .................................................24

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) .................................................19

Terry v. Ohio,

392 U.S. 1 (1968) .......................................................14

Wenk v. O'Reilly,

783 F.3d 585 (6th Cir. 2015) ....................................31

Whitney v. California,

274 U.S. 357 (1927) ............................................ 13–14

Wood v. Moss,

572 U.S. 744 (2014) ...................................................20

Worrell v. Henry,

219 F.3d 1197 (10th Cir. 2000) ......................... 29, 30

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017).................................. 20–21, 22

Constitutional and Statutory Provisions

U.S. Constitution amend. I .................................passim

U.S. Constitution amend. IV.......................................15

Act of July 4, 1840, c. 45, 6 Stat. 802, 26th Cong.

(1840)........................................................................11

Act of Mar. 3, 1875, 18 Stat. 470, 470 (codified as

amended at 28 U.S.C. § 1331 (1994) ....................17

Espionage Act of 1917..................................................13

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346,

2671–2680................................................................26

Sedition Act of 1918 .....................................................13

Other Authorities

Alexander Addison, Analysis of the Report of the

Committee of the Virginia Assembly, on the Proceedings of Sundry and of the Other States in Answer to their Resolutions (Philadelphia, Zachary

Poulson Jr. ed. 1800) ..............................................16

Br. for Carlos M. Vázquez and Anya Bernstein as

Amici Curiae, Hernandez v. Mesa, 17-1678 (Aug.

9, 2019).....................................................................26

Br. for Institute for Justice as Amicus Curiae, Hernandez v. Mesa, 17-1678 (Aug. 9, 2019) ...............26

Carlos Manuel Vázquez, Bivens and the Ancien

Régime, 96 Notre Dame L. Rev. 1923

(2021)........................................................... 18, 27–28

Carlos Manuel Vázquez & Stephen I. Vladeck, State

Law, the Westfall Act, and the Nature of the

Bivens Question, 161 U. Penn. L. Rev. 509

(2013)........................................................................26

Chad Lawhorn, Haskell president removed from office following investigation and concerns about

free speech at university, Lawrence JournalWorld, (May 7, 2021) ................................................ 5

Collins, et al., First Things First: A Modern Coursebook on Free Speech Fundamentals (Jackie

Farmer ed., 2019) .......................................... 7–8, 10

Eileen Reynolds, We the Protestors: How America’s

Founders Forged the Freedom of (Ugly, Vitriolic)

Speech, NYU (June 30, 2016) .................................. 8

Embattled Haskell administration forbids criticism

from faculty days after being sued for violating

students’ First Amendment rights, FIRE

(Mar. 25, 2021) ..........................................................4

FIRE: 2, Haskell: 0 as university rescinds misguided

directives muzzling faculty speech, FIRE (Apr. 7,

2021) ...........................................................................5

Harold L. Nelson, 3 Am. J.L. Hist. 160 (1959) .........10

Harry Kalven, Jr., The New York Times Case: A Note

on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191 ........................ 12–13

James Madison, The Virginia Report of 1799–1800,

in Freedom of the Press from Zenger to Jefferson

(Leonard W. Levy ed., 1966)..................................11

James Morton Smith, Freedom’s Fetters: The Alien

and Sedition Laws and American Civil Liberties

(1956)........................................................................11

Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2017)...7, 9, 10, 16, 25, 27

Letter from Thomas Jefferson to James Madison

(Mar. 15, 1789) in 14 The Papers of Thomas Jefferson (Julian P. Boyd ed., 1971) ..........................16

Michael Kent Curtis, Free Speech: The People’s Darling Privilege: Struggles for Freedom of Expression in American History (2000) .......................9–11

Report with S. 122, 24th Cong. 1st Sess. (1836).......11

Sina Kian, The Path of the Constitution: The Original System of Remedies, How It Changed, and

How the Court Responded, 87 N.Y.U. L. Rev. 132

(2012)........................................................................17

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights in Education

(FIRE) is a nonpartisan, nonprofit organization dedicated to promoting and protecting civil liberties at our

nation’s institutions of higher education. Since its

founding in 1999, FIRE has successfully defended the

rights of tens of thousands of students and faculty at

colleges and universities nationwide, including federal institutions of higher education. To ensure that

federal institutions respect First Amendment rights

on campus, students and faculty who experience free

speech violations must have an available remedy.

FIRE defends student and faculty First Amendment rights through public advocacy, targeted litigation, and participation as amicus curiae in relevant

cases. Notably, FIRE currently represents student

journalists in a suit against Haskell Indian Nations

University, a federally operated institution, and its

former president who retaliated against them for expression protected by the First Amendment. Compl.,

Nally v. Graham, No. 21-2113-JAR-TJJ (D. Kan. Mar.

2, 2021). The district court dismissed this claim, holding that a Bivens remedy is not available for First

Amendment retaliation. There is no reason these student journalists should lack a remedy for First

Amendment harms available to students and faculty

at virtually all other public institutions of higher

learning. FIRE has a direct interest in this case

1 Pursuant to Rule 37.6, amicus affirms that no counsel for

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

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief. Counsel for both parties

have consented to the filing of this brief.

because the Court’s resolution of the first question

presented—whether there is a Bivens claim for First

Amendment retaliation—would resolve the Nally

plaintiffs’ Bivens claim, which presently remains appealable to the United States Court of Appeals for the

Tenth Circuit.

Amicus submits this brief to urge the Court to affirm the Ninth Circuit’s decision allowing a damages

remedy for First Amendment retaliation, which is

consistent with Congressional intent and preserves

the only available remedy for completed violations of

one of the Constitution’s most fundamental enumerated rights, freedom of expression.

SUMMARY OF ARGUMENT

Journalists and other speakers, like Respondent

Boule and FIRE plaintiff Jared Nally, suffer the

chilling consequences of retaliation by federal officials. These consequences can only be remedied, and

violation of constitutional rights by federal officials

can only be sufficiently deterred, through backwardlooking damages.

Colonial Americans, patriots of the American Revolution, and the Founders relied on free speech as a

means of dissent, to advocate for change, and to form

a new government. This fundamental right played a

critical role in the Founding era, withstood early tests

in the form of seditious libel trials, and was ultimately

enumerated in the Bill of Rights. Given the foundational nature of the First Amendment’s protection,

damages should be available under Bivens when federal officials retaliate against speakers for exercising

their expressive rights. The Framers would have expected it.

Only backward-looking damages can remedy such

a violation. Further, Congress has implicitly endorsed

a Bivens remedy, and cannot reasonably be expected

to do so explicitly when even the first Congress did

not. Finally, the federal judiciary is well-suited to consider First Amendment retaliation claims, which are

a well-settled method of pleading a First Amendment

violation in every circuit.

ARGUMENT

The Unavailability of Damages for First

Amendment Retaliation By Federal Officials Chills Speech.

Without the availability of a First Amendment retaliation claim under Bivens, journalists and other

speakers will be left without any remedy for the harm

they suffer when powerful federal officials retaliate

against them for their expression. Jared Nally is one

such journalist and speaker.

In October 2020, Nally was editor-in-chief of the

oldest Native American student newspaper in the

country, The Indian Leader, and a student at federally

operated Haskell Indian Nations University.2 After

Nally’s reporting criticized Haskell, Graham issued a

“Directive” forbidding Nally from engaging in standard newsgathering activities like recording interviews

or asking questions of public officials. Id. Graham’s

Directive threatened to discipline Nally if he engaged

in these and other constitutionally protected activities, or failed to show members of the Haskell community the “highest respect.” Id. Nally was subject to

2 See Compl., Nally.

Graham’s Directive for 90 days—almost his entire fall

semester—before Graham rescinded it in response to

amicus FIRE’s intervention.

Around the same time, Graham also interfered

with the operations of The Indian Leader because of

its reporting. The administration stonewalled the paper from ascertaining its available funding for the semester and refused to grant the paper official university recognition. And student journalists feared further retaliation from Graham, like the Directive, if

they engaged in reporting critical of Graham or

Haskell.

Graham’s blatant disregard for the First Amendment extended beyond students. Graham also issued

two other directives forbidding all Haskell employees

from publicly expressing opinions about Haskell administrators and from referencing their employment

when speaking with reporters.3 These directives followed quickly on the heels of a lawsuit amicus FIRE

filed against Graham, Haskell, and the Bureau of Indian Education—just when faculty and staff were

likely to be approached by reporters about Haskell’s

dismal record on student speech. The directives

chilled dissent from, and criticism of, federal officials

at Haskell. The Bureau of Indian Education rescinded

3 Embattled Haskell administration forbids criticism from

faculty days after being sued for violating students’ First Amendment rights, FIRE (Mar. 25, 2021), https://www.thefire.org/embattled-haskell-administration-forbids-criticism-from-facultydays-after-being-sued-for-violating-students-first-amendmentrights/ [https://perma.cc/GX4F-M7FF].

the faculty directives, but Haskell faculty and staff

had already been silenced for weeks. 4

In May, the Bureau announced that, with the support of Haskell’s Board of Regents, it had removed

Graham as President.5 The Bivens claims of Nally and

The Indian Leader for First Amendment retaliation

against Graham remained pending in the U.S. District Court in Kansas. With the directives rescinded

and Graham removed, there was no injunctive or

other forward-looking relief available to Nally and

The Indian Leader for the months-long infringement

on their expressive rights—only backward-looking

damages. And if any faculty member sought a remedy

for Graham’s infringement on their First Amendment

rights, they would have faced the same circumstances.

Nevertheless, on July 29, 2021, the District Court

dismissed Nally and The Indian Leader’s Bivens

claims for First Amendment retaliation.6 The court

held the claims arose in a new context and that alternative remedies were available under the Administrative Procedure Act, even though it provides for only

4 FIRE: 2, Haskell: 0 as university rescinds misguided directives muzzling faculty speech, FIRE (Apr. 7, 2021),

https://www.thefire.org/fire-2-haskell-0-as-university-rescindsmisguided-directives-muzzling-faculty-speech/ [https://perma.cc/

3RQK-SCFQ].

5 Chad Lawhorn, Haskell president removed from office follow-

ing investigation and concerns about free speech at university,

Lawrence

Journal-World,

(May

2021),

https://

www2.ljworld.com/news/general-news/2021/may/07/haskellpresident-removed-from-office/ [https://perma.cc/A72D-Q2JP].

6 Nally v. Graham, No. 2:21-cv-2113-JAR-TJJ, 2021 WL

3206348 (D. Kan. July 29, 2021).

injunctive relief—and for Nally, The Indian Leader,

Haskell faculty, and the many other speakers who experience retaliation at the hands of federal officials,

injunctive relief cannot remedy their past harm.

Without a Bivens remedy, the guarantees of the

First Amendment are toothless against rogue federal

officials, like Graham, who retaliate against students

and faculty for exercising their expressive rights. This

bar on the recovery of damages chills speech of students and student journalists like Nally, who seek to

report truthfully on campus news and their university

administration; of faculty who wish to speak out on

issues of public concern, particularly during times of

controversy; and of the millions of Americans nationwide who interact with federal officials on a daily basis. Without a damages remedy, federal officials can

violate the First Amendment and chill speech with impunity. This runs counter to the Framers’ intent that

the First Amendment provide robust free speech protections to encourage full participation in our democracy.

II.

Freedom of Speech Was Fundamental to

the Founding.

When federal officials retaliate against speakers in

violation of the First Amendment, it is particularly ill

considered to leave those speakers without a remedy,

for two reasons. First, because expressive freedom

aided the ultimate establishment of our country free

from British rule. Second, because it laid the groundwork for free speech protections enumerated in the

First Amendment. Before 1776, American colonists

voiced protest against taxes and royal rule. After the

Founding, they continued to use their freedoms of

speech and press to criticize government officials and

debate legal and policy issues. These freedoms were

integral to the Revolution, formation of the United

States’ earliest government, and early political debates. The Framers’ inclusion of the freedoms of

speech and of the press in the First Amendment confirms the fundamental nature of these rights, and is

the result of a compromise between early elected officials that facilitated ratification of the Constitution.7

A. Early Americans relied on freedoms of speech and the press as political tools.

It is a time-honored tradition predating the Founding to criticize government officials.8 In the years

leading to the American Revolution, colonists used

speech, both spoken and written, as a means of advocacy, a political tool, and an outlet for dissent.9 If

speakers are to continue to use these tools, there must

be a damages remedy to deter federal officials from violating the First Amendment.

7 Indeed, representatives of several states did not consider the

Constitution complete until the Bill of Rights was added to expressly protect individual rights. See Jud Campbell, Natural

Rights and the First Amendment, 127 Yale L.J. 246, 295–96

(2017).

8 See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,

361–62 (1995) (Thomas, J., concurring) (describing the use of

pamphleteering during the Revolutionary and Ratification periods for political purposes, including the trial of John Peter

Zenger).

9 Collins, et al., First Things First: A Modern Coursebook on

Free Speech Fundamentals, at 2–3 (Jackie Farmer ed., 2019) (describing colonial dissent and protests against the Stamp Act).

During the late 1700s, before the American Revolution and ratification of the Constitution, colonists

protesting the Stamp Act would gather in Boston under what was called the “Liberty Tree” to air grievances and protest royal rule.10 The tree itself became

such a symbol of colonists’ dissent that British officials cut it down. But colonists continued to speak, assembling instead at a “Liberty pole” erected in the

tree’s place.11

Pamphleteering was also an expressive mainstay

in early America. Pamphleteers, in fact, were prototypical publishers and acted, much as news outlets do,

as a vehicle to inform the public about issues of the

day.12 This method of expression allowed the Revolutionaries to reach more individuals, gaining support

for the cause that would eventually become the American Revolution and founding of a new nation.13 It was

also a means by which politicians in the newly formed

10 Id. at 2.

11 Id. at 2–3.

12 See McIntyre, 514 U.S. at 360–71 (Thomas, J., concurring)

(outlining the various ways early Americans used pamphlets to

communicate messages concerning particular controversies and

political arguments, oftentimes anonymously, from the early colonial period through ratification).

13 Collins, et al., supra note 9, at 4–5; see also Eileen Reynolds,

We the Protestors: How America’s Founders Forged the Freedom

of (Ugly, Vitriolic) Speech, NYU (June 30, 2016),

https://www.nyu.edu/about/news-publications/news/2016/

june/stephen-solomon-on-revolutionary-dissent.html

[https://perma.cc/TC8L-2MYQ] (interviewing Professor Stephen

Solomon about his book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech).

United States engaged in debate, particularly between the Federalists and anti-Federalists,14 including on the issue of whether a Bill of Rights was even

necessary.15

Freedom of expression won the day in several early

tests. In 1735, for example, British officials charged

printer John Peter Zenger with seditious libel for publishing political pamphlets that were critical of the

loyalist governor of New York.16 Zenger’s ultimate acquittal came to stand for the idea that the government

may not punish truthful statements on matters of

public concern.17 That acquittal marked the end of

successful seditious libel prosecutions during the colonial period—the people simply did not support

14 McIntyre, 514 U.S. at 362–64 (describing controversy surrounding anonymous pamphlets and essays during the Revolutionary and Ratification periods and concluding that the Federalists engaged in a “hasty retreat before the withering criticism

of their assault on the liberty of the press”).

15 See Campbell, supra note 7, 127 Yale L.J. at 295–98 (describing the “public jousting that occurred in newspapers, pamphlets, and state ratification conventions” concerning whether to

include a Bill of Rights in the Constitution). Campbell notes that

the writings themselves did not highlight freedom of speech, id.

at 298–99, but those involved in the “public jousting” were availing themselves of the freedom to debate the issue of the day.

16 Michael Kent Curtis, Free Speech: The People’s Darling

Privilege: Struggles for Freedom of Expression in American History, at 41 (2000).

17 Id. at 40–41.

censorship by way of seditious libel charges, and refused to convict.18

After the revolution, in 1798, President John Adams signed the Alien and Sedition Acts into law,

ch.74, 1 Stat. 596, 5th Cong. (1798). The Acts were politically motivated, and censored expression critical of

the government. 19 Benjamin Franklin Bache, grandson of Benjamin Franklin, was an anti-Federalist and

a prolific and controversial printer at the time. He often published pieces critical of Adams, George Washington, and Alexander Hamilton.20 Bache was arrested under the Sedition Act, and charged with seditious libel, but he died before he could be tried.21

At least one early legislator, James Madison—

who, perhaps not coincidentally, authored the Bill of

Rights—argued the Act ran afoul of the First Amendment. In a 1799 report to the Virginia legislature, he

pointed out both that the federal government was one

of enumerated powers, among which was not power

over the press, and that the First Amendment further

18 Curtis, supra note 16, at 46 (citing Harold L. Nelson, 3 Am.

J.L. Hist. 160, 170 (1959)); Beauharnais v. Illinois, 343 U.S. 250,

289 (1952) (Jackson, J., dissenting) (noting that “political disapproval of the Sedition Act was so emphatic and sustained that

federal prosecution of the press ceased for a century”).

19 Collins, et al., supra note 9, at 10; Campbell, supra note 7,

at 283 (explaining that opponents of John Adams’ administration

“view[ed] the Sedition Act as part of ‘a legislative program designed to cripple, if not destroy’” his political opponents).

20 Collins, et al., supra note 9, at 6.

21 Id.

reiterated this point.22 His concern was with both the

impropriety of prior restraints, long disfavored under

English common law, and subsequent punishment for

expression. “It would seem a mockery to say, that no

law should be passed, preventing publications from

being made, but that laws might be passed for punishing them in case they should be made.”23 When President Jefferson took office in 1801, he let the Alien and

Sedition Acts expire and pardoned Bache and others

similarly charged.24

The Sedition Act was recognized as unlawful in its

time and has since been soundly denounced as contrary to the First Amendment. Congress elected to repay fines levied under the Sedition Act on grounds

they were unconstitutional.25 In an 1836 address,

Senator John Calhoun noted “no one now doubts” the

invalidity of the Act. 26 And Supreme Court Justices

have assumed the Sedition Act’s invalidity. Sullivan,

22 Curtis, supra note 16, at 95.

23 Id. (quoting James Madison, The Virginia Report of 1799–

1800, in Freedom of the Press from Zenger to Jefferson, 213

(Leonard W. Levy ed., 1966)).

24 New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964)

(quoting Jefferson as writing, “I discharged every person under

punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity. . ..”); Curtis,

supra note 16, at 88 (citing James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties,

at 221–26 (1956)).

25 Act of July 4, 1840, c. 45, 6 Stat. 802, 26th Cong. (1840).

26 Report with S. 122, 24th Cong. 1st Sess. (1836).

376 U.S. at 276. 27 This Court never considered the

Act, but “the attack upon its validity has carried the

day in the court of history . . . These views reflect a

broad consensus that the Act, because of the restraint

it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”

Id.

The Sedition Act’s demise—and its denunciation

by early Americans and this Court—underscores not

only that criminalizing speech critical of the government is inconsistent with the First Amendment, but

also the foundational role of free speech in our democracy. The Court in Sullivan reckoned with the “awkward history” of seditious libel in the United States

and “definitively put to rest the status of the Sedition

Act” as having violated the First Amendment.28 But

the Court also “found in the controversy over seditious

libel the clue ‘to the central meaning of the First

Amendment[]’ . . . a core protection of speech without

which democracy cannot function.” Or, as Madison

said, without it “‘the censorial power’ would be in the

Government over the people and not ‘in the people

27 Citing Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting) (arguing that the United States has

“shown its repentance” for the Sedition Act”); Beauharnais, 343

U.S. at 288–89 (Jackson, J., dissenting) (noting that political disapproval of the Act was emphatic, and in hindsight it was a

breach of the First Amendment); see also Sullivan, 376 U.S. at

276 (citing the scholarly work of Supreme Court Justice William

O. Douglas, Michigan Supreme Court Justice Thomas M. Cooley,

and scholar Zechariah Chaffee, Jr. as examples of the broad consensus that the Acts were unconstitutional).

28 Harry Kalven, Jr., The New York Times Case: A Note on

“The Central Meaning of the First Amendment,” 1964 Sup. Ct.

Rev. 191, at 208.

over the Government.’” 29 Freedom of speech survived

these early tests because of support for this “central

meaning” from the people and many of the Founders.

Over time, the First Amendment of the 1790s gave

rise to the robust First Amendment jurisprudence

courts apply today. For example, freedom of speech

faced another test when the perils of the First World

War again resulted in prosecutions of seditious libel—

dormant the previous century—under the Espionage

Act of 1917 and the Sedition Act of 1918.30 In the following decades, this Court rejected the reasoning of

those cases upholding convictions for seditious libel,

and speech-protective jurisprudence arose consistent

with the Founding era idea that for democracy to

flourish the government should not hold censorial

power over the people.31 Today, consistent with this

29 Id.

30 See, e.g., Masses Publ’g Co. v. Patten, 246 F. 24 (1917) (overturning Judge Learned Hand’s refusal to convict a postmaster

under the Espionage Act of 1917); Schenck v. United States, 249

U.S. 47 (1919) (affirming convictions under the Espionage Act for

obstructing military recruitment and conscription efforts);

Abrams, 250 U.S. at 616 (upholding the conviction of political

leafleteers under the Sedition Act of 1918 over a dissent from

Justices Oliver Wendell Holmes and Louis D. Brandeis, who argued that the First Amendment protected the leaflets).

31 See Brandenburg v. Ohio, 395 U.S. 444 (1969) (overturning

the clear and present danger test from Schenck). Later decisions

like Brandenburg are consistent with the reasoning of the dissenters in Abrams and Justice Brandeis’ famous concurrence in

Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring) (“Those who won our independence believed that the final

end of the state was to make men free to develop their faculties .

. .. They valued liberty both as an end and as a means. . . . They

believed that freedom to think as you will and to speak as you

“central meaning” of the First Amendment, free

speech jurisprudence protects the expression of unpopular ideas by prohibiting both prior restraints and

subsequent punishment for expression. “Our representative democracy only works if we protect ‘the marketplace of ideas.’ This free exchange facilitates an informed public opinion which, when transmitted to

lawmakers, helps produce laws that reflect the People’s will.” Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct.

2038, 2046 (2021) (holding subsequent punishment of

high school student for her speech was unconstitutional). See also Crawford-El v. Britton, 523 U.S. 574,

592 (1998) (noting the general rule “has long been established” that the First Amendment bars retaliation

for protected speech). Consistent with the original rationale for the First Amendment, speakers should

have a damages remedy for retaliation by federal officials to encourage speech and deter retaliation.

Like the First Amendment, the contours of other

enumerated rights, including those for which a Bivens

remedy has been recognized, evolved over time. The

Fourth Amendment, for example, evolved significantly during the 20th century and into the 21st.32

think are means indispensable to the discovery and spread of political truth; . . . that public discussion is a political duty; and

that this should be a fundamental principle of the American government.”).

32 See, e.g., Katz v. United States, 389 U.S. 347 (1967) (establishing the test for when someone has a reasonable expectation

of privacy under the Fourth Amendment); Terry v. Ohio, 392 U.S.

1 (1968) (creating the “totality of the circumstances” test to evaluate whether officials have probable cause to stop and frisk

someone); Illinois v. Gates, 462 U.S. 213 (1983) (establishing the

probable cause standard); United States v. Leon, 468 U.S. 897

(1984) (establishing the good faith exception to the Fourth

Amendment); Riley v. California, 573 U.S. 373 (2014) (holding

Bivens itself concerned a Fourth Amendment claim

for damages for an alleged unlawful search and seizure—an illegal arrest in the petitioner’s home.

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388, 389 (1971). In finding that

an implied cause of action existed under the Constitution for such a violation, this Court applied then-recent decisions clarifying the scope of the Fourth

Amendment. Id. at 393–94 (citing Katz, 389 U.S. 347;

Berger v. New York, 388 U.S. 41 (1967); and Silverman

v. United States, 365 U.S. 505 (1961)). And it did so

despite the fact that “the Fourth Amendment”—like

the First—“does not in so many words provide for enforcement by an award of money damages for the consequences of its violation.” Bivens, 403 U.S. at 396.

Expressive freedom during the colonial period was

fundamental to establishment of the United States as

an independent nation. Further, the Framers’ believed freedom of expression and freedom of the press

are essential to a healthy democracy—and warranted

explicit protection in the Bill of Rights. These fundamental protections should not be toothless against

federal officials.

B. The Constitution and Bill of Rights

were drafted against the backdrop

of the common law.

English and early American courts operated under

a traditional common law system that allowed for

damages for violation of rights as a matter of course.

The Framers drafted the Constitution, and enumerated rights of free speech, freedom of the press, and

warrantless search and seizure of a cell phone during an arrest

violates the constitution).

freedom of assembly therein, against the backdrop of

this common law system. As such, damages should remain available for a violation of these rights.

As discussed above, the Framers were influenced

by political ideals and lived experience concerning free

speech in drafting the Constitution. And they spoke

about freedom of speech and the press in practical, not

purely philosophical, ways.

Thomas Jefferson explained his view that enumerated rights would be a “legal check . . . in[] the hands

of the judiciary.” 33 And Federalist Alexander Addison

said “[I]t is well known that, as by the common law of

England, so by the common law of America, and by the

Sedition Act, every individual is at liberty to expose,

in the strongest terms, consistent with decency and

truth all the errors of any department of the government.” 34

When the Constitution and Bill of Rights were

drafted, and later, when this Court decided Bivens in

1971, individuals could sue federal officers for damages in state court under common law theories of liability. This was true for not only enumerated rights,35

33 Campbell, supra note 7, at 267 n. 80 (citing Letter from

Thomas Jefferson to James Madison (Mar. 15, 1789) in 14 The

Papers of Thomas Jefferson (Julian P. Boyd ed., 1971)).

34 Id. at 284 (citing Alexander Addison, Analysis of the Report

of the Committee of the Virginia Assembly, on the Proceedings of

Sundry and of the Other States in Answer to their Resolutions, at

42 (Philadelphia, Zachary Poulson Jr. ed. 1800)).

35 See, e.g., Osborn v. Bank of the United States, 22 U.S. (9

Wheat.) 738 (1824) (recognizing a cause of action for collection of

an illegal tax); Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872)

but also unenumerated rights.36 Against the backdrop

of this established historical practice, there is “no reason to believe the draftsmen of the Constitution gave

specific attention to the problems of implementation...

[T]he Constitution was to be implemented in accordance with the remedial institutions of the common

law.” 37

Further, general federal question jurisdiction was

not codified until 1875.38 Absent diversity of the parties, therefore, before 1875, vindication of any constitutional right was litigated at the state level using the

common law system of remedies, which, as discussed

above, routinely allowed for damages to remedy past

harm. This Court’s decision in Erie Railroad Co. v.

Tompkins eliminating the “federal general common

(finding illegal authorization of settlers on land violated the Contracts Clause and warranted personal liability for the officers involved).

36 See, e.g., Entick v. Carrington (1765) 95 Eng. Rep. 807 (K.B.)

(finding by an English common law court that a claim for trespass against the King’s messengers warranted damages where

they broke into the plaintiff’s home without lawful authority);

Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (awarding damages against an American captain for the illegal seizure of a Danish ship); Bates v. Clark, 95 U.S. (5 Otto) 204, 204–05 (1877)

(awarding damages to a whiskey merchant after army officials

illegally confiscated his wares).

37 Sina Kian, The Path of the Constitution: The Original System of Remedies, How It Changed, and How the Court Responded, 87 N.Y.U. L. Rev. 132, 150 n. 71 (2012).

38 Act of Mar. 3, 1875, 18 Stat. 470, 470 (codified as amended

at 28 U.S.C. § 1331 (1994)).

law”39 muddied the proper forum in which to bring

causes of action with roots in federal law that were

historically litigated in state court under the common

law system. 40

It is against that backdrop that this Court considered supplementing common law remedies with a federal damages remedy, and ultimately decided to do so

by recognizing an implied damages remedy for constitutional violations in Bivens, 403 U.S. at 396–97. Doing so was consistent with a common-sense and historical view of the Framers’ expectations when they

adopted the Bill of Rights, which would have assumed

the rights therein to be fully enforceable.

III. Retaliation in Violation of the Fundamental Right to Free Speech Is a Proper

Bivens Claim.

Historically, as discussed above, individuals could

sue federal officials for damages for violating their

rights—constitutional or otherwise—often in state

court. “In the early Republic, ‘an array of writs . . .

allowed individuals to test the legality of government

conduct by filing suit against government officials’ for

money damages ‘payable by the officer.’ These

39 304 U.S. 64, 78 (1938).

40 See Carlos Manuel Vázquez, Bivens and the Ancien Régime,

96 Notre Dame L. Rev. 1923, 1931–32 (2021) (explaining how after Erie the old regime of remedies for rights violations was essentially “downgraded” to state law, like the rest of the former

federal common law). The Westfall Act both complicated matters

by eliminating state actions against federal officials, id. at 1937,

and clarified them by carving out an exception for constitutional

claims, see infra Section III.C.

common-law causes of action remained available

through the 19th century and into the 20th.” Tanzin

v. Tanvir, 141 S. Ct. 486, 491 (2020). Availability of a

First Amendment Bivens claim, therefore, would

rightly continue the common law approach to remedies for speakers who suffer government retaliation,

who could recover money damages payable by that official.

Under Bivens and its progeny, however, suing federal officials for damages directly under the Constitution has come to require a two-step inquiry:

(1) whether the claim arises in a new context; and, if

so, (2) whether “there are any special factors that

counsel hesitation” in recognizing a damages claim directly under the Constitution. Hernandez v. Mesa, 140

S. Ct. 735, 743 (2020). Central to this inquiry is

“whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the

costs and benefits of allowing a damages action to proceed.” Id. Under this framework, the Ninth Circuit determined that Respondent Boule’s First Amendment

retaliation claim arises in a new context. Based on the

Court’s prior decisions, it is far from clear that First

Amendment retaliation claims against federal officials arise in a new context. Further, none of the special factors counsel hesitation in recognizing a Bivens

remedy for First Amendment retaliation.

A. The Court’s current rule does not

foreclose a Bivens remedy for First

Amendment retaliation.

The Ninth Circuit ruled that Respondent Boule’s

First Amendment retaliation claim arises in a new

context. Boule v. Egbert, 998 F.3d 370, 390 (9th Cir.

2021). As an initial matter, it’s not clear a First

Amendment retaliation claim arises in a new context

for the purposes of Bivens, as this Court has been willing to assume, without deciding, that Bivens extends

to First Amendment claims. See Wood v. Moss, 572

U.S. 744, 757 (2014) (assuming a Bivens remedy was

available for plaintiff’s First Amendment retaliation

claims); Harlow v. Fitzgerald, 457 U.S. 800, 820 n.36

(1982) (deciding whether defendants were entitled to

immunity without disputing whether plaintiffs

properly alleged a damages claim under Bivens). Nevertheless, even if the Court determines that First

Amendment retaliation claims under Bivens arise in

a new context, a remedy is available because no special factors—including separation of powers, alternative remedies, and the suitability of the judiciary to

evaluate the claim—counsel hesitation. Indeed, the

fundamental nature of expressive rights to American

democracy, and the deterrent effect damages provide

against federal officials violating those rights, urge

the availability of a remedy.

This Court has not outlined an exhaustive list of

special factors, instead explaining that “sometimes

there will be doubt because some other feature of a

case—difficult to predict in advance—causes a court

to pause before acting without express congressional

authorization.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1858

(2017). However, this Court’s emphasis on “whether

the Judiciary is well-suited, absent congressional action, or instruction,” id., to consider a Bivens claim,

emphasizes the importance of one special factor: separation of powers concerns.41

41 See Hernandez, 140 S. Ct. at 749–50 (summarizing all of the

special factors as relating to concerns about separation of powers).

In the context of a typical First Amendment retaliation claim, separation of powers concerns do not

counsel hesitation because the Framers and early congressmen would not have doubted the availability of

effective enforcement of the enumerated rights in the

Constitution. Congress has also implicitly endorsed a

damages remedy for constitutional violations, and it

is unreasonable to expect the modern Congress to do

what the first Congress did not.

Further, separation of powers is just one of the several “special factors” to be considered before recognizing a Bivens remedy. Another special factor that counsels hesitation is when “there is an alternative remedial structure present” in the case. Abbasi, 137 S. Ct.

at 1858. The unavailability of any other remedy for

completed First Amendment violations weighs

strongly in favor of a remedy for speakers alleging

First Amendment retaliation claims against federal

officials. Only backward-looking damages can remedy

such deprivations of First Amendment rights. There

is no adequate alternative remedy for these past

harms.42

Because recognizing a Bivens remedy for First

Amendment retaliation does not interfere with an

honest evaluation of separation of powers, because no

remedy other than damages can repair past harm to

speakers, and because the federal judiciary regularly

evaluates First Amendment retaliation claims, this

42 Nally’s case illustrates why forward-looking injunctive relief is often inadequate in First Amendment retaliation cases.

Rescission of Graham’s Directive and his removal as President of

Haskell would have been appropriate injunctive relief, but those

already occurred. Without damages, Nally was left without a

remedy for the 90 days he was silenced under the Directive.

Court should recognize a Bivens remedy for First

Amendment retaliation.

B. A damages claim is the only available remedy for past harms to

speakers subjected to retaliation

by federal officials.

While availability of alternative remedies to vindicate a plaintiff’s harm counsels hesitation before recognizing a damages remedy under Bivens, see Abbasi,

137 S. Ct. at 1858; Hernandez, 140 S. Ct. at 750, such

hesitation is not warranted for First Amendment retaliation. No alternative remedial structure can address past harm to speakers when federal officials retaliate against them for exercising First Amendment

rights. In Abbasi, this Court emphasized that a damages remedy against federal officials was appropriate

where, as in Bivens and Davis v. Passman, it was

“damages or nothing.” 137 S. Ct. at 1862 (quoting

Bivens, 403 U.S. at 410 (Harlan, J., concurring in the

judgment)); Davis v. Passman, 442 U.S. 228, 245

(1979). First Amendment retaliation claims like Respondent Boule’s and the plaintiffs’ in Nally seek a

remedy for past harm, which can be remedied only by

way of damages.

In another recent case, Himmelreich v. Federal Bureau of Prisons, a federal inmate alleged a corrections

officer retaliated against him for filing a grievance

against prison staff. No. 4:10CV2404, 2019 WL

4694217 (N.D. Ohio Sept. 25, 2019). Federal officials

argued a Bivens remedy was inappropriate because,

instead, the inmate could petition for a writ of habeas

corpus. Id. at *11. But the writ would be insufficient;

even if it could have relieved the prisoner “from the

tangible consequences of the alleged retaliation, it

would not itself have cured the intangible First

Amendment injury he endured the moment he was

punished for engaging in protected activity.” Id. (emphasis in original). See also Jerra v. United States,

No. 2:12-cv-01907-ODW, 2018 WL 1605563, at *5–6

(C.D. Cal. Mar. 29, 2018) (“Injunctive relief . . . does

not compensate [the plaintiff] for the harm he suffered, and does not present an adequate alternative.”).

And in Dyer v. Smith, a traveler asserted both

First Amendment and Fourth Amendment damages

claims after a Transportation Security Administration agent ordered plaintiff to delete a recording of the

agent patting down plaintiff’s husband. No. 3:19-cv921, 2021 WL 694811, at *1–2 (E.D. Va. Feb. 23,

2021). The Court found there was no alternative remedy for the traveler because the TSA’s administrative

complaints process allowed traveler complaints about

denied or delayed boarding only when they are

wrongly identified as a “threat”; this was insufficient

to remedy the past harm caused by First Amendment

retaliation. Id. at *5.

In some cases, like Himmelreich, there will be an

additional remedy to relieve a speaker from ongoing

harm caused by a censor, like injunctive relief or, for

federal inmates, a writ of habeas corpus. But none of

these remedies can address the “intangible First

Amendment injury,” Himmelreich, 2021 WL 469217,

at *11, that occurs the moment an official engages in

retaliation. Only damages, looking backward to that

moment, can do so. To foreclose these damages for

speakers who happen to experience retaliation at the

hands of a federal official is inconsistent with the rationale that “[b]ecause ‘every violation [of a right]

imports damage,’ nominal damages can redress [a

speaker]’s injury. . . .” Uzuegbunam v. Preczewski, 141

S. Ct. 792, 802 (2021) (holding nominal damages for a

First Amendment retaliation claim sufficed to confer

standing). However quantified, past harms caused by

First Amendment retaliation are remedied only by

damages. And if federal officials can escape liability

for completed violations of the First Amendment, they

will not be deterred from continuing to retaliate.

Similarly, in Bivens itself, Bivens sought damages

for his arrest, in his home, by federal agents on November 26, 1965. Bivens, 403 U.S. at 390. That arrest

and search were completed when, on July 7, 1967,

Bivens filed suit, and on June 21, 1971, when this

Court reversed the dismissal of his claim for damages.

Id. For Bivens, it was “damages or nothing,” because

no other remedy looked back at the harm caused when

federal officials entered his home and arrested him.

Id. at 410.

The primary remedy for First Amendment retaliation in all cases is similarly backward-looking money

damages.43 This is because no other remedy will do.

To prohibit recovery of damages against federal officials, the original persons restricted by the First

Amendment, guts the protections of this fundamental

right by rendering it virtually toothless to vindicate

past harms.

43 See, e.g., Jennings v. Town of Stratford, 263 F. Supp. 3d 391

(D. Conn. 2017) (affirming jury award of $1 million in compensatory damages for First Amendment retaliation); Pucci v. Somers,

834 F. Supp. 2d 690 (E.D. Mich. 2011) (affirming jury award of

over $500,000 in compensatory damages for First Amendment

retaliation).

C. Allowing Bivens claims for First

Amendment retaliation does not

run afoul of the separation of powers.

Judge Bumatay’s dissent in the Ninth Circuit’s decision in favor of Respondent Boule leads with the argument that separation of powers, not fundamental

rights, is the “radical innovation” of the Constitution,

and allowing Respondent to recover damages for violation of his First Amendment rights would undermine this innovation.44 However, allowing speakers to

recover for violations of their fundamental rights in

court via First Amendment retaliation claims—which

by their nature typically involve individual instances

of unlawful action, not high-level government policy—

does not interfere with separation of powers. And the

Constitution embodying these principles of separation

of powers may not have even been ratified without the

individual rights enumerated in the Bill of Rights.45

The Framers themselves would not have drafted

an explicit enforcement mechanism because they

would not have doubted the rights they enumerated

were enforceable. See supra Section II.B. This Court

should not expect Congress to have done so, either.

There are, however, a number of other explanations

for why Congress has not explicitly endorsed a damages remedy for First Amendment retaliation.

44 Boule, 998 F.3d at 373–74 (Bumatay, J., dissenting).

45 See supra note 7.

First, as many litigants, amici, and scholars have

argued46—correctly—Congress already implicitly endorsed damages remedies for constitutional violations

in the Westfall Act. In the Act, Congress pre-empted

state tort remedies and made the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 1346, 2671–2680, the exclusive remedy against federal officers acting within the

scope of their employment. This broad pre-emption included an exception for Bivens remedies by exempting

cases where litigants bring claims “for a violation of

the Constitution of the United States.” 28 U.S.C.

§ 2679(b)(2)(A).

In Hernandez, however, this Court interpreted the

Westfall Act’s exemption for constitutional violations

to mean Congress “left Bivens where it found it.” Hernandez, 140 S. Ct. at 748 n.9. In 1988, when Congress

passed the Act, the Court had only recognized a damages remedy against federal officials for violations of

the Fourth Amendment search and seizure clause,

Bivens, the Fifth Amendment due process clause, Davis, 442 U.S. at 243–44, and the Eighth Amendment

cruel and unusual punishment clause, Carlson v.

Green, 446 U.S. 14, 19–20 (1980).

As an initial matter, this interpretation of the

Westfall Act runs counter to the plain language of the

46 See, e.g., Br. for Institute for Justice as Amicus Curiae, Hernandez v. Mesa, 17-1678 (Aug. 9, 2019); Br. for Carlos M.

Vázquez and Anya Bernstein as Amici Curiae, Hernandez v.

Mesa, 17-1678 (Aug. 9, 2019); Carlos Manuel Vázquez & Stephen

I. Vladeck, State Law, the Westfall Act, and the Nature of the

Bivens Question, 161 U. Penn. L. Rev. 509 (2013); Pls. Mem. of

Law In Opp'n. To Def. Ronald Graham’s Mot. to Dismiss. Pls.

Third Cause of Action, Nally v. Graham, No. 2:21-cv-2113-JARTJJ (D. Kan. June 22, 2021).

statute, which broadly contemplates damages for “a

violation of the Constitution of the United States.”

Further, Congress was aware of the Court’s decisions

in Bivens, Carlson, and Davis when it passed the

Westfall Act, the latest of which was decided eight

years prior. Congress could have easily specified if it

indeed intended to “leave Bivens where it found it” in

1988, but did not.

Second, it would be inconsistent with the Framers’

intent to leave the enforceability of the fundamental

protections contained in the Bill of Rights, and related

limits on government authority, to the government itself.47 A government unbound by these protections

was what Jefferson and Madison feared—a government that could readily deny Americans their liberties. See supra note 7. For hundreds of years, dating

back to the Founding, speech has been used as a tool

for dissent and criticism of government, as the Framers intended.48 Here, Respondent Boule criticized Petitioner Egbert, a federal official, by filing complaints

about him.49 In Nally v. Graham, students, student

journalists, and faculty were all chilled from engaging

in expression critical of the university administration.50 Speakers exercise their rights to free speech to

criticize everyone from the President of the United

47 Vázquez, supra note 40, at 1934. This concern is not similarly salient when the question is whether a remedy is available

for a statutory right because Congress, not the Framers, created

the right.

48 See supra Section I.A.

49 Boule, 998 F.3d at 386.

50 Nally, 2021 WL 3206348 at *2–3.

States to federal law enforcement officials to members

of Congress themselves. A damages remedy for violation of the fundamental right to free speech is supported by the common law and consistent with free

speech’s foundational role in a democracy—Congress

need not explicitly open the door.

Third, Congress cannot rationally be expected to

explicitly authorize a damages remedy for First

Amendment retaliation claims. Congress, in fact, can

be expected to “underprotect the constitutional limits

on federal officials” because those limits restrict the

ability of officials to enforce the laws Congress itself

enacts.51 Opponents of expanding Bivens might argue

this structural reality means special factors do counsel hesitation before recognizing an implied cause of

action, because a damages remedy may hinder the execution of federal laws. But this argument, too, fails

to consider the fundamental role of free speech in

democratic governance because it effectively leaves

the fox in charge of the henhouse—Congress is certainly not likely to protect the expressive rights of its

critics. It runs counter to the very nature of the First

Amendment’s protections and to rational expectations

of Congress to forbid the recovery of damages when

federal officials engage in retaliation against speech.

51 Vázquez, supra note 40, at 1934–35.

D. The judiciary is well-suited to evaluate First Amendment retaliation

claims to remedy the deprivation

of a fundamental right.

Recognizing a Bivens remedy for First Amendment

retaliation will not charge the federal judiciary with

the evaluation of new or inappropriate claims because

First Amendment retaliation claims are a settled way

to plead past violations of a speaker’s First Amendment rights.52

In Hernandez, the Court reasoned that the universe of statutorily available remedies reflects the

grand compromise of Congress, the outcome of the

American political process. Hernandez, 140 S. Ct. at

741–42. But the Founders drafted the Bill of Rights

without the benefit of today’s universe of jurisprudence on First Amendment claims. And Congress was

unlikely to take the affirmative step of explicitly recognizing a damages claim for First Amendment retaliation, see supra Section III.C.

52 Crawford-El, 523 U.S. at 592; D.B. v. Esposito, 675 F.3d 26,

43 (1st Cir. 2012); Cox v. Warwick Valley Cent. Sch. Dist., 654

F.3d 267, 272 (2d Cir. 2011); Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685–86 (4th Cir. 2000); Brown v.

Jones Cnty. Junior Coll., 463 F.Supp.3d 742, 760 (S.D. Miss.

2020) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002));

Anders v. Cuevas, 984 F.3d 1166, 1175 (6th Cir. 2021); Bridges v.

Gilbert, 557 F.3d 541, 546 (7th Cir. 2009); Bennie v. Munn, 822

F.3d 392, 397 (8th Cir. 2016); Koala v. Khosla, 931 F.3d 887, 905

(9th Cir. 2019); Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.

2000); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005);

Aref v. Lynch, 833 F.3d 242, 250 (D.C. Cir. 2016).

This well-settled claim provides a workable standard for the judiciary, which will continue to preside

over litigation of First Amendment claims against

state actors regardless of the outcome of this case. The

first two elements of a First Amendment retaliation

claim are that the speaker engaged in constitutionally

protected activity and that a state actor takes adverse

action against the speaker. Nieves v. Bartlett, 139 S.

Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547

U.S. 250, 256 (2006)). In most circuits, the adverse action must be such that it would chill a person of ordinary firmness from continuing to engage in protected

activity. 53 The third element requires that the

speaker establish a causal connection between the official’s retaliatory motive and their injury. Nieves, 139

S. Ct. at 1722 (citing Hartman, 547 U.S. at 259).

The first prong is an objective standard that can be

measured against established bodies of law. The second prong, including the “ordinary firmness” test, involves a mixed question of fact and law but can also

be measured against established bodies of case law

concerning that test and what constitutes an “adverse

action.” Unlike the first two elements, the determination of whether the state actor’s conduct was substantially motivated by the speaker’s protected activity requires fact-intensive inquiry—although in some cases

it is straightforward. Id.

Further, courts have developed a number of forms

of objective evidence from which to determine whether

53 See, e.g., Bennie, 822 F.3d at 397; Worrell, 219 F.3d at 1212.

This Court’s decisions in Nieves and Hartman to not address the

ordinary firmness test.

a speaker has satisfied the causation element.54 Just

like the district courts in Dyer, Himmelreich, and

Jerra, the district court in this case evaluated Respondent Boule’s First Amendment claim without apparent issue.

Judicial hostility towards a speaker’s First

Amendment retaliation claim—not necessarily on its

merits, but by virtue of the fact that it is not one of the

claims litigants raised in Bivens, Davis, or Carlson—

should not preclude a remedy for an enumerated

right. Recognizing a remedy here will not present an

undue burden on the judiciary to consider a “new”

Bivens claim, because First Amendment retaliation is

a long-settled and familiar cause of action.

CONCLUSION

For the above reasons, and those presented by Respondent, this Court should affirm the Ninth Circuit

and recognize a Bivens claim for First Amendment retaliation where a speaker faces retaliation from a federal government official because of their speech, and

the harm is not ongoing but completed and therefore

cannot be remedied by injunctive or other non-monetary relief.

54 See, e.g., Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d

259, 267 (3d Cir. 2007) (“[A] plaintiff usually must prove either

(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal

link.”) (citations omitted); Wenk v. O'Reilly, 783 F.3d 585, 595–

600 (6th Cir. 2015) (finding causation could be inferred from

plaintiffs’ evidence that defendant took adverse action shortly after protected speech).

Dated: January 26, 2022

Respectfully Submitted,