Amicus Curiae Brief — J. T. H., et al., Petitioners v. Spring Cook

No. 22-509

In The

Supreme Court of the United States

J.T.H.; H.D.H.,

Petitioners,

v.

SPRING COOK,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE CREATING LAW

ENFORCEMENT ACCOUNTABILITY

& RESPONSIBILITY PROJECT AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

ALEXA L. GERVASI

Counsel of Record

3505 Melwood Ave.

Pittsburgh, PA 15213

(806) 335-6632

alexagervasi@gmail.com

JEFF DANIEL CLARK

The Justice Foundry PLLC

550 Reserve St., Ste 190

Southlake, TX 76092

DON TITTLE

Law Office of Don Tittle, PLLC

8350 N. Central Expy.

Ste. M1085

Dallas, TX 75206

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

i

TABLE OF CONTENTS

Page

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

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

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

I. Retaliatory investigations are obviously

unconstitutional. ................................................ 3

A. “Obviousness” is an equal source of

clearly established law. ............................... 3

B. The unconstitutionality of retaliation

is clearly established, irrespective of

the means used to retaliate. ....................... 6

II. Investigations cause substantial, lifelong harms. ....................................................... 10

A. Government investigations threaten

individuals’

relationships

and

employment................................................. 11

B. Government investigations leave

individuals in a prolonged state of

instability and uncertainty. ...................... 14

C. Government investigations chill

First Amendment activity. ........................ 16

CONCLUSION ............................................................ 19

ii

TABLE OF AUTHORITIES

Page

Cases

Archer v. Chisholm, 870 F.3d 603 (7th Cir. 2017) .... 3

Baird v. State Bar of Ariz., 401 U.S. 1 (1971).......... 17

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .......... 10

Branti v. Finkel, 445 U.S. 507 (1980) ......................... 9

Brosseau v. Haugen, 543 U.S. 194 (2004) .................. 4

Colson v. Groham, 174 F.3d 498 (5th 1999) .............. 3

Crawford-El v. Britton, 523 U.S. 574 (1998) ....... 9, 10

DeGregory v. Att'y Gen. of N.H.,

383 U.S. 825 (1966) ................................................. 17

Gibson v. Fla. Legis. Investigative Comm.,

372 U.S. 539 (1963)................................................. 17

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) ........ 6

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ................. 6

Hartman v. Moore, 547 U.S. 250 (2006) ................. 3, 9

Hoggard v. Rhodes, 141 S. Ct. 2421 (2021)................ 8

Hope v. Pelzer, 536 U.S. 730 (2002) .................... 3, 4, 5

Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002) ...... 16

Kisela v. Hughes, 138 S. Ct. 1148 (2018) ................... 7

Krulewitch v. United States, 336 U.S. 440 (1949) ... 11

Lincoln v. Maketa, 880 F.3d 533 (10th Cir. 2018)..... 3

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) ....................................... 7, 8, 9

iii

McCoy v. Alamu, 141 S. Ct. 1354 (2021) ............ 4, 5, 9

McCoy v. Alamu, 950 F.3d 226 (5th Cir. 2020) ......... 5

Mullenix v. Luna, 577 U.S. 7 (2015) ................... 6, 7, 9

NAACP v. Alabama, 357 U.S. 449 (1958) ................ 17

Nieves v. Bartlett, 139 S. Ct. 1715 (2019)....... 2, 7, 8, 9

Perry v. Sindermann, 408 U.S. 593 (1972) .......... 9, 16

Pickering v. Bd. of Educ. of Twp. High Sch. Dist.

205, 391 U.S. 563 (1968) ........................................... 9

Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010) .. 3, 6

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.

364 (2009) ................................................................... 4

Shelton v. Tucker, 364 U.S. 479 (1960) .................... 17

Sivella v. Township of Lyndhurst, 2021 WL 3356934

(3d Cir. Aug. 3, 2021) ................................................ 3

Sure-Tan, Inc. v. NLRB, 367 U.S. 883 (1984) ........... 9

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ..... 12

Taylor v. Riojas, 141 S. Ct. 52 (2020) ..................... 4, 5

White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ............... 3

Wieman v. Updegraff, 344 U.S. 183 (1952) ........ 13, 14

Constitutional Provisions

U.S. Const. Amend. I .......................................... passim

U.S. Const. Amend. IV ......................................... 6, 7, 8

Other Authorities

American Civil Liberties Union, U.S. Government

Watchlisting: Unfair Process and Devastating

Consequences (March 2014) ................................... 13

iv

Andrew D. Leipold, The Problem of the Innocent,

Acquitted Defendant, 94 Nw. U. L. Rev. 1297

(2000) ........................................................................ 11

Diala Shamas and Nermeen Aratsu, Mapping

Muslims: NYPD Spying and Its Impact on

American Muslims (2013) ................................ 17, 18

Emily Berman, Regulating Domestic Intelligence

Collection, 71 Wash. & Lee L. Rev. 3 (2014) ........ 16

Federal Bureau of Investigation, Terrorist Screening

Center ....................................................................... 10

Jack Balkin, The Constitution in the National

Surveillance State, 93 Minn. L. Rev. 1 (2012) ..... 16

Julie E. Cohen, Examined Lives: Informational

Privacy and the Subject as Object, 52 Stan L. Rev.

1373 (2000) ............................................................... 18

Matthew A. Wasserman, Note, First Amendment

Limitations on Police Surveillance: The Case of the

Muslim Surveillance Program, 90 N.Y.U. L. Rev.

1786 (2015) ............................................................... 17

Murtaza Hussain, The Pariah: He Declined the FBI’s

Offer to Become an Informant. Then His Life was

Ruined, The Intercept (Nov. 30, 2021) ................. 12

Neil M. Richards, The Dangers of Surveillance, 126

Harv. L. Rev. 1934 (2013)....................................... 17

Restatement (Second) of Agency § 213 (1958) ......... 14

Rose Hackman, American, Muslim, and Under

Constant Watch: The Emotional Toll of

Surveillance, The Guardian (Mar. 27, 2016).. 15, 19

v

Shirin Sinnar, Questioning Law Enforcement: The

First Amendment and Counterterrorism

Interviews, 77 Brook. L. Rev. 41 (2011) ................ 13

1

INTEREST OF AMICUS CURIAE1

The Creating Law Enforcement Accountability &

Responsibility Project (“CLEAR”) is a non-profit organization that supports Muslims and other clients,

communities, and movements in the New York City

area and beyond that are targeted by local, state, or

federal government agencies under the guise of national security and counterterrorism.

CLEAR works to transform or abolish law enforcement policies and practices that unjustly target Muslim communities. In particular, CLEAR represents

individuals who have been subjected to unfounded investigations and surveillance based on nothing more

than stereotypes about their religion or ethnicity, and

it provides educational resources to individuals to better enable them to protect their personal liberties.

CLEAR writes as amicus to emphasize the obvious

and substantial constitutional harms that emanate

from retaliatory, or otherwise unfounded, investigations and to reinforce the importance of accountability

for such abuses of power.

SUMMARY OF ARGUMENT

Government retaliation in response to protected

speech is a constitutional violation no matter what

1 No counsel for any party authored this brief in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief.

Timely notice of the intent to file this amicus brief was provided

to all parties, and all parties have consented to the filing of this

brief.

2

means the government uses to accomplish its payback—prosecution, arrest, fines and fees, or even investigations.

Yet, despite clearly established Supreme Court

precedent clarifying that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected

speech,” Nieves v. Bartlett, 139 S. Ct. 1715, 1722

(2019) (internal quotation omitted) (cleaned up), the

circuit courts are split as to whether retaliatory investigations amount to a constitutional violation. This

split is without merit.

In Hope v. Pelzer, this Court rejected the notion

that clearly established law derives exclusively from

factually specific precedent and instead recognized

that, in obvious cases, general statements of law can

put government officials on notice that their behavior

offends the Constitution. This is one such case: Existing law prohibiting other methods of retaliation

leaves no room for doubt that retaliatory investigations offend the Constitution.

But even if it weren’t obvious from the law that

such investigations are unconstitutional, it should be

clear from the harms that investigations impose. Because of government investigations, individuals’ interpersonal relationships and livelihoods are threatened, they are thrown into prolonged periods of uncertainty and instability, and their speech and expression are chilled. These harms do not expire with

the investigation but are enduring traumas at the

hands of the government. The Constitution demands

a remedy for these injuries.

3

This Court should grant certiorari to resolve the

circuit split and clarify that clearly established law

prohibits investigations in retaliation for First

Amendment activity.

ARGUMENT

I.

Retaliatory investigations are obviously

unconstitutional.

The disparity in circuit courts’ treatment of retaliatory investigation claims 2 reflects an insincere application of law and a blatant effort to deny accountability, demanding this Court’s intervention. Even in

light of Hartman v. Moore’s footnote nine, 547 U.S.

250, 262 n.9 (2006), Hope v. Pelzer, 536 U.S. 730

(2002), and its progeny dictate the outcome in this

case: Every reasonable officer is on notice that First

Amendment retaliation is unconstitutional, irrespective of the means they use to accomplish their retaliation.

A. “Obviousness” is an equal source of

clearly established law.

Twenty years ago, this Court sought to remove the

“rigid gloss” that tainted the qualified immunity

standard. Hope, 536 U.S. at 739. In Hope, the Court

acknowledged that appellate courts often require a

previous case with “materially similar” facts to find a

2 Compare, e.g., White v. Lee, 227 F.3d 1214 (9th Cir. 2000),

with Colson v. Groham, 174 F.3d 498 (5th 1999); Rehberg v.

Paulk, 611 F.3d 828 (11th Cir. 2010); Archer v. Chisholm, 870

F.3d 603 (7th Cir. 2017); Lincoln v. Maketa, 880 F.3d 533 (10th

Cir. 2018); and Sivella v. Township of Lyndhurst, 2021 WL

3356934 (3d Cir. Aug. 3, 2021).

4

law clearly established. Id. And then it rejected this

requirement. Id. The question, this Court explained,

is not whether the “very action in question has previously been held unlawful”; it is whether the official

had “fair warning that their alleged [behavior] was

unconstitutional.” Id. at 739–741. And in some situations, “a general constitutional rule already identified

in the decisional law may apply with obvious clarity

to the specific conduct in question.” Id. at 741 (cleaned

up). In other words, there is an avenue beyond factually identical precedent to recognize clearly established law: obviousness. Id.3

For the Hope Court, it was obviously clear—if not

from the nature of the violation itself, then from the

reasoning in analogous cases, state regulations, and a

government report—that the Constitution forbids fixing a prisoner to a hitching post for hours without reprieve.4 That was true even though no previous case

expressly held that this particular conduct violated

the Constitution. Id. If precedent tells officers they

cannot handcuff a prisoner to a fence or to his cell bars

for hours, officers are obviously on notice that they

3 See also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“[I]n

an obvious case, [general] standards can ‘clearly establish’ the

answer, even without a body of relevant case law.”); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (“The

unconstitutionality of outrageous conduct obviously will be unconstitutional.”); Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020)

(per curiam); McCoy v. Alamu, 141 S. Ct. 1354 (2021) (mem.).

4 Hope, 536 U.S. at 738 (“[T]he Eighth Amendment violation

is obvious.”); id. at 741–744 (explaining the violation was so obvious that general Eighth Amendment principles arguably gave

fair warning, and then providing additional reasons for why the

law was clearly established).

5

cannot fix a prisoner to a hitching post for hours. See

id. at 742.

The obviousness principle is not a dead letter. In

the last two years, this Court has summarily reversed

two opinions of the Fifth Circuit for their failure to

heed Hope’s instructions. First, in Taylor v. Riojas,

this Court reaffirmed that precedent was not necessary to fairly notify officials that forcing a prisoner to

sleep in a jail cell teeming with excrement is unconstitutional; it was obvious that the “conditions of confinement offended the Constitution.” 141 S. Ct. at 53–

54. Then, in McCoy v. Alamu, this Court instructed

the Fifth Circuit to reconsider its grant of qualified

immunity to an official who pepper-sprayed a prisoner in the face “for no reason at all,”5 even though

there was no binding precedent forbidding this precise conduct. 141 S. Ct. at 1354. Together, these reversals reaffirm that qualified immunity should not

shield government officials who engage in obviously

unconstitutional conduct.

Hope and its progeny clarify that it is not enough

to ask whether factually identical precedent put an

official on notice. Courts must also provide a careful,

principled analysis of whether a constitutional right

is so obvious that any reasonable officer would have

fair warning that his behavior offended the Constitution. And they must do so in every case. Anything less

risks “the danger of a rigid, overreliance on factual

similarity.” Hope, 536 U.S. at 742.

5 McCoy v. Alamu, 950 F.3d 226, 229 (5th Cir. 2020), rev’d,

141 S. Ct. at 1354.

6

B. The unconstitutionality of retaliation

is clearly established, irrespective of

the means used to retaliate.

The Third, Fifth, Seventh, Eighth, Tenth, and

Eleventh Circuits’ insistence that the “right to be free

from a retaliatory investigation is not clearly established,” Rehberg, 611 F.3d at 850–851, relies on a

“rigid, overreliance on factual similarity” that ignores

the obvious in favor of government protection. The

constitutional violation is retaliation, no matter the

means used to accomplish it.

This Court created the “clearly established” test to

ensure that officials are not penalized for conduct that

they could not have reasonably known was unconstitutional. See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). This Court was concerned that, without a fairnotice requirement, officials would be chilled and the

threat of lawsuits would “dampen the ardor of all but

the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties.”

Id. at 814–819 (quoting Gregoire v. Biddle, 177 F.2d

579, 581 (2d Cir. 1949)) (cleaned up). In Mullenix v.

Luna, this Court further explained that the need for

specificity in defining clearly established law is particularly important in the Fourth Amendment context

because “it is sometimes difficult for an officer to determine how the relevant legal doctrine * * * will apply to the factual situation the officer encounters.”

577 U.S. 7, 12 (2015) (internal quotation omitted)

(cleaned up).

While these concerns are not without validity,

they do not hold water in the context of First Amendment retaliation claims. Compare a First Amendment

7

retaliation claim with a Fourth Amendment excessive

force claim. In the latter context, the constitutional

right at issue is freedom from excessive force. The relevant legal questions, therefore, are (1) whether the

officer’s specific conduct amounted to unconstitutionally excessive force in the circumstances and

(2) whether the officer had notice that his specific

force was excessive. See id. at 12–13. These questions

are fact specific because the line between permissible

and excessive force is not always clear, particularly in

situations that require split-second decision-making.

See Kisela v. Hughes, 138 S. Ct. 1148, 1152–1153

(2018).

Turning to the First Amendment context, it is axiomatic that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.”

Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (internal quotation omitted) (cleaned up). 6 The

6 Recognizing the right against retaliation does not undermine the reality that additional elements might require proof to

raise First Amendment retaliation claims. For instance, in the

context of retaliatory arrests, plaintiffs generally must show

that the officer lacked probable cause for the arrest. See Nieves,

139 S. Ct. at 1724. However, that requirement does not mean

retaliatory arrests with probable cause are constitutional and

proper; it simply reflects the line this Court drew to balance the

difficulties of “determin[ing] whether the adverse government

action was caused by the officer’s malice or the plaintiff’s potentially criminal conduct.” Id. Reinforcing the overarching right

against retaliation, this Court has emphasized an exception to

the probable cause requirement where there are objective indicia

of retaliation. See id. at 1727 (noting exception to probable cause

requirement and recognizing that “an unyielding requirement to

show the absence of probable cause could pose ‘a risk that some

police officers may exploit the arrest power as a means of

8

constitutional right, then, is freedom from retaliation.

So, parallel to the Fourth Amendment context, the

relevant questions for qualified immunity purposes

are (1) whether the government official’s specific conduct amounted to retaliation; and (2) whether the official had notice that her actions were retaliatory. Unlike in the Fourth Amendment context, where the

lines of excessiveness can be blurry, retaliation is

clear (even if it can be onerous to prove). 7 And unlike

in the Fourth Amendment context, where the circumstances surrounding the use of force affect the propriety of an official’s conduct, the specific means of retaliation makes no difference to whether an individual’s

constitutional right to freedom of speech was

abridged. Retaliation for protected activity alone is

the violation.

suppressing speech’” (quoting Lozman v. City of Riviera Beach,

138 S. Ct. 1945, 1953 (2018))).

7 Unlike in the Fourth Amendment context, First Amend-

ment retaliation—and retaliatory investigations in particular—

generally does not implicate split-second decision-making. Quite

the opposite: Investigations like the one at issue in this case require forethought, planning, and prolonged recommitment to the

constitutional violation. See Section II.B, infra. This drawn-out

timeline further undermines the relevance and persuasiveness

of a factual-similarity requirement for retaliatory investigation

claims. Cf. Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021)

(mem.) (Thomas, J., respecting the denial of certiorari) (“But

why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a

split-second decision to use force in a dangerous setting? [This

Court] has never offered a satisfactory explanation to this question.”).

9

To hold otherwise and require that the exact

method of retaliation have been previously litigated

and held unconstitutional is analogous to granting

qualified immunity because, in the case before the

court, the government official used pepper spray without cause and previous cases only referred to the unconstitutionality of unprovoked force with tasers and

fists. See McCoy, 141 S. Ct. at 1354. Just as such hairsplitting is improper there, see id., so too here.

The relevant inquiry is not the means of violation;

it is whether the official had fair notice that she “acted

unreasonably.” Mullenix, 577 U.S. at 13–14. In light

of existing precedent reiterating that (1) threatening

a lawsuit is protected speech8 and (2) retaliating

against an individual for their speech is unconstitutional,9 it is unreasonable to conclude that

8 See, e.g., Sure-Tan, Inc. v. NLRB, 367 U.S. 883, 896–897

(1984) (“[T]he right of access to courts for redress of wrongs is an

aspect of the First Amendment right to petition the government.”); Lozman, 138 S. Ct. at 1955 (recognizing the “right to

petition as one of the most precious of the liberties safeguarded

by the Bill of Rights” (internal quotation omitted)).

9 See, e.g., Nieves, 139 S. Ct. at 1723–1724 (recognizing the

clearly established right to be free from retaliatory arrests without probable cause); Hartman, 547 U.S. at 261–263 (recognizing

the clearly established right to be free from retaliatory prosecution without probable cause); Pickering v. Bd. of Educ. of Twp.

High Sch. Dist. 205, 391 U.S. 563, 574–575 (1968) (holding discharge of employment in retaliation for speech unconstitutional);

Branti v. Finkel, 445 U.S. 507, 515 (1980) (“If the First Amendment protects a public employee from discharge based on what

he has said, it must also protect him from discharge based on

what he believes.”); Perry v. Sindermann, 408 U.S. 593, 597

(1972) (reiterating that the government may not deny a public

benefit in retaliation for First Amendment activity); CrawfordEl v. Britton, 523 U.S. 574, 592 (1998) (recognizing that it has

10

government officials lack notice that retaliatory investigations offend the Constitution.

This Court should grant certiorari to correct circuit courts’ rigid application of First Amendment retaliation claims.

II.

Investigations cause substantial, life-long

harms.

The obvious unconstitutionality of retaliatory investigations is apparent not just from their nature—

government officials using their power to retaliate

against someone for engaging in constitutionally protected activity—but also from the significant harms

the investigations cause. The current circuit split,

wherein the majority of courts fail to recognize retaliatory investigations as constitutionally violative, ignores reality and dismisses victims’ real-world experiences, increasing the likelihood of future abuses of

power.

“long been clearly established” that “the First Amendment bars

retaliation for protected speech,” including retaliatorily diverting a prisoner’s legal mail); Bordenkircher v. Hayes, 434 U.S.

357, 363 (1978) (“[F]or an agent of the State to pursue a course

of action whose objective is to penalize a person’s reliance on his

legal rights is ‘patently unconstitutional.’”).

Further demonstrating that government officials are on notice that retaliatory investigations are unconstitutional, the FBI

specifically states that individuals cannot be added to the Terrorist Screening Center’s watchlist based on “[b]eliefs or activities protected by the First Amendment.” Federal Bureau of Investigation, Terrorist Screening Center, https://perma.cc/FY4VVJZB. This exclusive criterion is not limited to the Freedom of

Religion, which is separately listed as an improper basis for investigation. Id.

11

CLEAR encounters individuals in the throes of

government investigations on a daily basis and is intimately familiar with the ways in which investigations threaten individuals’ relationships and employment, leave them in a state of instability and uncertainty for untold periods of time, and chill future First

Amendment activity. These harms—and their ripple

effects—have life-long consequences that cannot be

condoned by the continued denial of government accountability.

A. Government investigations threaten

individuals’ relationships and employment.

Government investigations threaten individuals’

relationships—both personally and professionally—

by implying that the target of the investigation is engaged in wrongdoing and placing their affiliates at

risk of guilt by association.

Despite the legal presumption of innocence until

proven guilty, the social reality is that people generally assume that those accused of wrongdoing are

“guilty of something.” Andrew D. Leipold, The Problem of the Innocent, Acquitted Defendant, 94 Nw. U.

L. Rev. 1297, 1399 (2000). Worse still, the association

fallacy has a hold on society, leading people to avoid

relationships with the presumed guilty. Cf., e.g.,

Krulewitch v. United States, 336 U.S. 440, 445 (1949)

(Jackson, J., concurring) (describing the readiness of

others to believe that “birds of a feather are flocked

together,” leading to the abnormally high risk of codefendants being found guilty by association). This

presumption of guilt, and the consequences of association, begin with the investigatory process.

12

In its practice, CLEAR regularly consults with, advises, and represents clients who have lost friendships and employment because of government investigations. For instance, after Aswad Khan refused to

serve as an informant for the FBI, he noticed his

friend group shrinking until, eventually, he was

blocked on social media by his childhood best friend

and excluded from his wedding. Murtaza Hussain,

The Pariah: He Declined the FBI’s Offer to Become an

Informant. Then His Life was Ruined, The Intercept

(Nov. 30, 2021), https://perma.cc/TWV3-6ZWB/. As it

turned out, after Khan refused to act as an informant

and hired an attorney, the U.S. government began

questioning his friends and family when they would

travel across U.S. borders, suggesting Khan was engaged in nefarious activity. Id. “Friends I had my

whole life,” Khan explained, “started ghosting me

over these rumors that started from people who had

been questioned at the U.S. border.” Id. When Khan

encountered his estranged childhood friend at a party

years later, the friend confirmed that he believed it

was necessary to distance himself from Khan because

of the government’s probing. Id. In other words, the

mere suggestion of wrongdoing by a person shrouded

in government authority had the power to unravel a

lifetime of friendship. See also Sweezy v. New Hampshire, 354 U.S. 234, 248 (1957) (recognizing that legislative investigations into First Amendment views

impose the “stain of the stamp of disloyalty * * * without regard to the presence or absence of guilty

knowledge in those affected”).

Other of CLEAR’s clients refuse to travel with

friends and colleagues because the government’s unrelenting investigations place them in the spotlight at

13

airports and security checkpoints and, often, subject

the targets’ affiliates to increased scrutiny and questioning. Instead of facing the embarrassment of public

investigation in front of people they know or being the

cause of another’s interrogation, these individuals

travel alone. They sacrifice time with their families

and the networking and team building of company

travel because of the reach, the intrusion, and the

risks of government investigations. See also Shirin

Sinnar, Questioning Law Enforcement: The First

Amendment and Counterterrorism Interviews, 77

Brook. L. Rev. 41, 64–66 (2011) (describing the stigmatization and alienation caused by government investigations). This power—and its consequences—

should not be wielded lightly.

In addition to harms to their social relationships,

many of CLEAR’s clients have had their jobs suspended or terminated after government investigators

visited their employers or seized company property in

the course of their investigations. Clients have even

experienced difficulties obtaining future employment

because knowledge of previous investigations was

shared through the reference process.10 In other instances, CLEAR’s clients have been denied employment in the government presumably because they

were implicated in government monitoring. As this

Court has recognized, “[t]here can be no dispute about

the consequences visited up a person excluded from

10 See also American Civil Liberties Union, U.S. Government

Watchlisting: Unfair Process and Devastating Consequences

(March 2014), https://perma.cc/NZV4-X43R (explaining that inclusion on a government watchlist often precludes individuals

from obtaining employment and commercial or professional licenses).

14

public employment on disloyalty grounds.” Wieman v.

Updegraff, 344 U.S. 183, 190 (1952).

The harms to employment caused by investigations are not just anecdotal or speculative; in many

ways, they reflect a rational response by employers.

Section 213 of the Restatement (Second) of Agency

recognizes liability for negligent hiring. Restatement

(Second) of Agency § 213 (1958). This tort imposes liability against an employer for failing to exercise due

care in hiring employees who may pose a threat to

third parties. Id. Given this potential for civil liability

for employing someone who poses a risk to society,

suspending, firing, or declining to hire an employee in

the wake of a government investigation—particularly

for child neglect or abuse or terrorist activity—is not

entirely irrational, even if the investigation is ultimately pretextual or otherwise unjustified. It is a

foreseeable consequence of the investigatory process.

These harms reach far beyond reputation. They

deprive people of their personal relationships and of

their livelihoods. And while we may accept the consequences of investigations where they are based on a

legitimate, specific need for public safety, such harms

are intolerable and demand remediation when they

stem from nothing more than retaliatory animus.

B. Government investigations leave individuals in a prolonged state of instability and uncertainty.

In the case before this Court, Respondent Spring

Cook investigated Petitioners for more than two

months before issuing her preliminary findings. Pet.

App. 58a, 63a. During this time, Petitioners faced extreme uncertainty, constant stress, fears of losing out

15

on jobs or, worse, losing their children. For many, the

length of investigation—and, in turn, this time of turmoil—is significantly longer, compounding the harms

of government investigations.

In the case of CLEAR’s clients, individuals are often investigated for years. In one example, New York

Police Department and FBI officials appeared at Ahsan Samad’s home on at least five occasions in a fouryear period. And after he refused to talk with them

without a lawyer, the government placed Samad on a

no-fly list. See Rose Hackman, American, Muslim,

and Under Constant Watch: The Emotional Toll of

Surveillance, The Guardian (Mar. 27, 2016),

https://perma.cc/4UH9-WQ3V. Between each visit,

the investigation and threat of further police presence

in his home predominated Samad’s thoughts, traumatizing him and his family. Id. He never knew when the

next visit would come or if the surveillance would ever

end. Id.

Samad’s experience is not unique for subjects of

government investigations. In CLEAR’s experience,

individuals generally spend years under investigation. During this time, they experience depression,

anxiety, restrictions on their movement, fears of job

loss, unending worries about wrongful arrest, and

more. Once this trauma occurs, it is not easily undone.

Even after the investigation comes to a close, victims

of an unjustified intrusion fear future investigations

and retaliation.

Looking toward the future, it is hardly reasonable

to believe that government investigations will decrease in length or lessen in intrusiveness. To the contrary, as Professor Jack Balkin observes, U.S.

16

residents now live in a “National Surveillance State,”

wherein the government governs through surveillance, data collection, and data mining technologies.

Jack Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1, 2–5 (2012). As technology advances, and seemingly passive investigations increase in ubiquity, so too does the power and

reach of the government and the risks to constitutionally protected rights. Id. at 15–17 (detailing three constitutional dangers of the National Surveillance

State). In other words, the ability for and the harms

from prolonged investigations are destined to continue and intensify.11 This Court, therefore, should intervene now to clarify this increasingly important

area of law.

C. Government investigations chill First

Amendment activity.

The risk of chilling First Amendment activity is

the very reason why retaliation is prohibited.12 It is

the likelihood that retribution for speech will stamp

out a person’s First Amendment rights through fear

that demands accountability. In the context of this

11 See also Emily Berman, Regulating Domestic Intelligence

Collection, 71 Wash. & Lee L. Rev. 3, 17–18 (2014) (discussing

the near-unlimited breadth of the FBI’s investigation and intelligence-collection powers).

12 See, e.g., Perry, 408 U.S. at 597 (recognizing that retalia-

tion suppresses the exercise of First Amendment freedoms, impermissibly interfering with constitutional rights); Keenan v.

Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (identifying chilling

constitutionally protected activity as the injury necessary to

state a retaliation claim and noting that this element is the same

across jurisdictions).

17

understanding, the First Amendment demands a remedy—and in turn accountability—for retaliatory investigations.

This Court has long recognized the chilling effect

that government investigations can have on First

Amendment activity.13 And in recent years, this truth

already acknowledged by the Court has been proven

through empirical studies, particularly in the wake of

post-9/11 surveillance.14

For instance, scholars have observed that investigations threaten individuals’ “autonomy to freely

choose ideas and identities” and prevent people from

venturing outside the “mainstream,” which, in turn,

“threatens the freedom of thought, belief, and speech

that lie at the core of the liberties protected by the

First Amendment.” Matthew A. Wasserman, Note,

First Amendment Limitations on Police Surveillance:

The Case of the Muslim Surveillance Program, 90

N.Y.U. L. Rev. 1786, 1795–1796 (2015). 15

13 See, e.g., Baird v. State Bar of Ariz., 401 U.S. 1, 6 (1971);

DeGregory v. Att'y Gen. of N.H., 383 U.S. 825, 829 (1966); Gibson

v. Fla. Legis. Investigative Comm., 372 U.S. 539, 546 (1963);

Shelton v. Tucker, 364 U.S. 479, 490 (1960); NAACP v. Alabama,

357 U.S. 449, 466 (1958).

14 See Diala Shamas and Nermeen Aratsu, Mapping Mus-

lims: NYPD Spying and Its Impact on American Muslims, Long

Island City, NY: Muslim America Civil Liberties Coalition

(MACLC) and Creating Law Enforcement Accountability & Responsibility (CLEAR) Project (2013) (Mapping Muslims),

https://perma.cc/KP4M-U8H5.

15 Neil M. Richards, The Dangers of Surveillance, 126 Harv.

L. Rev. 1934, 1948 (2013) (observing that government scrutiny

“menaces our society’s foundational commitments to intellectual

diversity and eccentric individuality”); Julie E. Cohen,

18

In a study authored by CLEAR and other advocacy groups, researchers discovered that the Muslim

Surveillance Program—which is less intrusive than a

formal investigation16—suppressed religious practice,

affected Muslims’ comfort in associating with

strangers, and imposed self-censorship.17 When

asked, study participants reported that “the ever-present surveillance chills—or completely silences—their

speech whether they are engaged in political debate,

commenting on current events, encouraging community mobilization[,] or joking around with friends.”18

In short, surveillance—and thus, to an even greater

degree, formal investigations—“quell[s] political activism, quiet[s] community spaces[,] and strain[s] interpersonal relationships.”19

For instance, in Samad’s experience, the intrusion

of the government’s investigation was so impactful

that he ended a relationship with a woman he hoped

to marry—impacting his freedom of association—because he decided that marriage and children were not

Examined Lives: Informational Privacy and the Subject as Object, 52 Stan L. Rev. 1373, 1426 (2000) (“Pervasive monitoring of

every first move or false start will, at the margin, incline choices

toward the bland and the mainstream. The result will be a subtle

yet fundamental shift in the content of our character, a blunting

and blurring of rough edges and sharp lines.”).

16 Mapping Muslims at 9 (noting that surveillance is distinct

from criminal investigations and that surveillance did not uncover sufficient information to lead to a single investigation,

which would be the next step in the fact-finding process).

17 Id. at 4.

18 Id. at 20.

19 Id.

19

possible under the government’s unrelenting watch.

“It’s not fair to inflict this situation on anyone else,”

Samad concluded before noting that “the tool of fear *

* * definitely works” to alter peoples’ behavior. Hackman, The Emotional Toll of Surveillance.

Similarly, when Rabia Ahsin was an undergrad at

Brooklyn College, she was warned not to participate

in Palestinian solidarity activism because “[p]eople

[were] watching,” and, indeed, undercover police officers had in fact worked their way into her friend group.

Id. Not only did the fear of investigation prevent

Ahsin from advocating for or associating with a cause

she cared about, but it left her unable to safely have

any conversations about ideas or policies, even in her

classrooms. Id.

The First Amendment chill that CLEAR’s clients

experience because of government surveillance and

investigation is not specific to Muslim communities.

They are the same harms that this Court has long recognized as a consequence of government investigations. And they are the exact harms that First Amendment retaliation claims are designed to protect

against and remediate for. There is simply no justification for treating retaliatory investigations differently from any other form of First Amendment retaliation.

This Court should grant certiorari to clarify the

unconstitutionality of retaliatory investigations and

protect against future harms.

CONCLUSION

Before this Court is a clean vehicle to resolve a circuit split on an issue of exceptional importance.

20

Without this Court’s review, the obvious constitutional harms created by retaliatory investigations will

continue without repercussion or deterrence. The

Court should grant the petition.

Respectfully submitted,

Alexa L. Gervasi

Counsel of Record

3505 Melwood Ave.

Pittsburgh, PA 15213

(806) 335-6632

alexagervasi@gmail.com

Counsel for Amicus Curiae

December 14, 2022.