Amicus Curiae Brief — Lozman v. City of Riviera Beach, 138 S. Ct. 447 (2017) (No. 17-21)

Supreme Court brief2017

Ask Donna

What actually matters in this document.

Text

No. 17-21

IN THE

Supreme Court of the United States

FANE LOZMAN,

Petitioner,

THE CITY OF RIVIERA BEACH, FLORIDA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF AMICT CURIAE OF NATIONAL PRESS

PHOTOGRAPHERS ASSOCIATION AND

25 MEDIA AND FREE SPEECH ORGANIZATIONS

IN SUPPORT OF PETITIONER

Robert D. Balin Robert Corn-Revere*

John M. Browning Ronald G. London

Davis Wright Tremaine LLP Davis Wright Tremaine LLP

21st Floor

1251 Avenue of the Americas

Yale Law School

P.O. Box 208215

New Haven, CT 06520

1919 Pennsylvania Ave., NW,

Suite 800

Washington, DC 20006

(202) 973-4200

bobcornrevere@dwt.com

Mickey H. Osterreicher

National Press Photographers

Association

120 Hooper Street

Athens, GA 30602

Counsel for Amici Curiae

*Counsel of Record

Additional Counsel Listed on Inside Cover

QQeVEeue_——~—~>*x****__i—*_*_*{*{*}_;{_}_}}{{}]}{]]}]]}]}]};*_}_}_}{{{{*__""="""""=*"=={======

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

Bruce D. Brown

Gregg P. Leslie

The Reporters Committee

for Freedom of the Press

1101 Wilson Blvd.

Suite 1100

Arlington, VA 22209

Sandra S. Baron

Media Law Resource Ctr.

520 Eighth Avenue

North Tower, 20th Floor

New York, NY 10018

1300 N. 17th St., 11th FL

Arlington, VA 22209

Counsel for American Soc. of

News Editors and Assn. of

Alternative News Media

Cheryl L. Davis

General Counsel

The Authors Guild

31 East 32 Street, 7” Fl.

New York, NY 10016

Jason P. Conti

Dow Jones & Company, Inc.

1211 Avenue of the Americas

New York, NY 10036

David Greene

Andrew Crocker

Electronic Frontier

Foundation

815 Eddy Street

San Francisco, CA 94109

David Snyder

First Amendment Coalition

QUESTION PRESENTED

Does the existence of probable cause defeat a

First Amendment retaliatory arrest claim as a

matter of law?

QUESTION PRESENTED

TABLE OF AUTHORITIES

INTERESTS OF AMICI] CURIAE

TABLE OF CONTENTS

FREEDOM OF THE PRESS IS AT RISK

IF PROBABLE CAUSE SERVES AS AN

ABSOLUTE BAR TO FIRST AMEND-

MENT RETALIATION CLAIMS......................

A. Retaliation for Unfavorable Press

B. Arrests While Covering Public Protests

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

THE COURT SHOULD ADOPT A

STANDARD THAT APPROPRIATELY

BALANCES THE NEEDS OF LAW

ENFORCEMENT WITH FIRST

A. The Power to Make Arrests Can Disrupt

Newsgathering and Other First Amend-

I irtatierereictnerineetiitsnientieintens

Poe ee ECC OCC OO OCS COCO ECE Cee ee eee

OCP eC Pee eee ee eee eee eee eee

EEE EEE EEE EEE EEE EEE EH EEE EEE EH

ill

B. The Burden Shifting Framework of Mz.

Healthy City School District Board of

Education v. Doyle Strikes the Correct

Constitutional Balance............................00+

SS ciresenennenressesancesunsescensimneusssepueesonmseounneet

APPENDIX

TABLE OF AUTHORITIES

Federal Cases

Addison v. City of Baker City,

258 F. Supp. 3d 1207 (D. Ore. 2017).......

City of Houston v. Hill,

Be en Ge GOP wrisrccctcctcntnsecesstenssssenece

Cox v. Louisiana,

FAD UE, BE CIID occ eccccsesescvesececnccscessens

Crawford-El v. Britton,

ee III cirisatersoenictnontnisvuseminensin

Devenpeck v. Alford,

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

Elrod v. Burns,

Se EE AE UE inccncisteveustvciinecnonsvadions

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) .......00..0.0.......

First Nat'l Bank of Boston v. Bellotti,

es Fe iicetestncsctcencestnessccscences

Garcia v. Montgomery Cty.,

145 F. Supp. 3d 492 (D. Md. 2015)..........

Garcia v. Montgomery Cty.,

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

2013), No. JFM-12-3592 ...............:c0c000000

Page(s)

Glik v. Cunniffe,

655 F.3d 78 (let Cir. 2011) ....................cc0eeee0e. 4,17

Gregory v. City of Chi.,

EE ae aa SADE Rae ee 20

Grosjean v. American Press Co.,

a a coiseistadibveldbnineeuitell 8

Hartman v. Moore,

Be I incoccesommmetousbincciobeccessies 23, 26

Heffernan v. City of Paterson,

ESAS ere omen eee 23

Huminski v. Corsones,

ee re ey GD orc cecerncensccccnnsoncscesenscossons 3

lacobucci v. Boulter,

BI Fe BG Gia Ge, BED vaccoccoccecccccccecsenssesensccssss 3

In re King World Prods., Inc.,

898 F.2d 56 (6th Cir. 1990) ...........0...0ccceeceeeeeeeee 18

Kolender v. Lawson,

as ccssiiesmienienbonane 19-20

Lacey v. Maricopa Cty.,

693 F.3d 896 (9th Cir. 2012).............0000000. 9, 10, 11

Lozman v. City of Riviera Beach,

ER ee ee oe ae 2

Malley v. Briggs,

TEE RS ARE re Wee Sane ee See 22

Monell v. Dep't of Soc. Servs.,

a calamabiaine 22

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

v. Doyle,

re GIG Oi ncencecccninccoseessvnvinmsstesensces passim

N_Y. Times Co. v. United States,

I ce eaennliii 3

Nebraska Press Ass'n v. Stuart,

A I its oiatcientettvalabaheninianninnciannnsienion 18

Papachristou v. City of Jacksonville,

ee ia iichciiccecccctanoudetiscanisesntuniatodon 20

Patterson v. United States,

999 F. Supp. 2d 300 (D.D.C. 2013).................00.. 20

Perry v. Sindermann,

cee 22, 24

Reichle v. Howards,

I Fs Ce I vsenescessncenscevevnceveecs 11, 12, 25, 26

Rossignol v. Voorhaar,

316 F.3d 516 (4th Cir. 2009)....................000+ 11, 27

Shuttlesworth v. City of Birmingham,

ST I i ccemneui 3, 19

Smith v. Goguen,

fg EES a SE ne aanre arti 20

Thornhill v. Alabama,

ay ee IID io cciscectscnsnsinstsnpinscuittedeniaspinntests 20

vil

Turner v. Driver,

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

Village of Arlington Heights v.

Metropolitan Housing Dev. Corp.,

Se I i is erittinrssncnenntssosceeions

Whren v. United States,

Ey We EE crevincvccsnconssocescrsensees

Constitutional Provisions

es SO seueneiunabene

Federal Statutes

nn ccc ucinneia

Other Authorities

Andrew Metcalf, Montgomery County

Settles First Amendment Lawsuit

with Photographer, BETHESDA

MAGAZINE, March 8, 2017, available

at http://www. bethesdamagazine.com/

Bethesda-Beat/2017/Montgomery-

County-Settles-First-Amendment-

Lawsuit-with-Photographer ................

David Becker, Detroit Newspaper

Photographer Arrested While

Covering Police Action, Petapixel

(reprinted from Detroit Free Press),

July 16, 2013, available at

http://bit.ly/2hySmdC....................0000008

Vili

Derek Hawkins, Popular Texas blogger

scooped police on a story. They

charged her with 2 felonies, searched

her phone records, WASH. POST, Dec.

22, 2017, available at https://www.

washingtonpost.com/news/morning-

mix/wp/2017/ 12/22/popular-texas-

blogger-scooped-police-on-a-story-so-

they-charged-her-with-2-felonies/

2utm_ term=.2d97ded20883 ........................cccceee 11

Editorial, The right to record the

NYPD, N.Y. DAILY NEWS,

Mar. 26, 2017, available at

http://www.nydailynews.com/opinion

/record-nypd-article-1.3008500............................ 16

Elana Beiser, Record Number of

Journalists Jailed as Turkey, China,

Egypt Pay Scant Price for Repression,

December 13, 2017, https://cpj.org/

reports/2017/12/journalists-prison-

jail-record-number-turkey-china-

Elizabeth Kolbert, The Big Sleazy,

THE NEW YORKER, June 12, 2006,

available at https://www.newyorker.

com/magazine/2006/06/12/the-big-

SY Aeccncsehcictpleagedicssictentbdasshunubiesmestisiniswecansininaineibies

Erin McCann, J/udge Rejects Riot

Charge against Amy Goodman

of ‘Democracy Now’ Over Pipeline

Protest, N.Y. TIMES, Oct. 17,

2016, available at

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

/us/judge-rejects-riot-charge-against-

amy-goodman-of-democracy-now-

over-pipeline-protest. html ............................c..000+ 14

Freep Photographer Arrested While

Recording An Arrest, CBSLocal.com,

July 16, 2013, available at

http://detroit.cbslocal.com/20 13/07/16

/freep-photo_grapher-arrested-while-

ait iarsceccciiescntcesnscnsensacsaniiees 16

Howell Raines, George Wallace,

Segregation Symbol, Dies at 79, N.Y.

TIMES, Sept. 14, 1998,

http://www.nytimes.com/

1998/09/14/us/george-wallace-

segregation-symbol-dies-at-79. html ...................... 8

Jaclyn Peiser, Journalist Swept Up

in Inauguration Day Arrests

Faces Trial, N.Y. TIMES,

Nov. 14, 2017, available at

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

/business/media/alexei-wood-

journalist-trial-inauguration. htm] ................. 12-13

James T. Hamilton, Attacks on the

Press Have Helped Bring Down a

President Before, WASH. MONTHLY,

January 12, 2017, available at

https://washingtonmonthly.com/

2017/01/12/nixon-and-trump-past-as-

RE SAE RS SS el ha Sh a PO 7

Joel Simon, Barack Obama’s Press

Freedom Legacy, COLUMBIA

JOURNALISM REV., Apr. 3, 2015,

available at https://www.cjr.org/

criticism/barack_obamas_press_free

Ns aiiicictccsncanteianintcinictoseansunessassnenstonens 7

Matt Hamilton, L.A. Times photo-

grapher arrested after covering

Nancy Reagan funeral motorcade,

L.A. TIMES, Mar. 9, 2016, available

at http:/Nat.ms/1QFntAG .......2... eee cece eeeee eens 17

Matt Stevens, Charge Dropped Against

Reporter Who Questioned Tom

Price, N.Y. TIMES, Sept. 6, 2017,

available at https://www.nytimes.

com/2017/09/06/business/media/tom-

price-journalist-arrest.html...............................+. 14

Max Zahn, ‘This is unprecedented’

Public colleges limiting journalist

access, COLUMBIA JOURNALISM REV.,

Dec. 13, 2017, available at

https://www.cjr.org/analysis/cuny-

campus-journalist-crackdown.php ...................... 15

Memo Submitted by White House

Counsel John Dean to the Ervin

Committee, Facts on File, Watergate

and the White House, vol. 1, available

at https://www.colorado. edu/

AmStudies/lewis/film/enemies.htm....................... 7

Michael M. Grynbaum, 7rump, in

Latest Bout With Media, Conjures

Physical Fight With a Foe, N.Y.

S.A aR ee 7

Niraj Chokshi, Ferguson-related

charges dropped against Washington

Post and Huffington Post reporters,

WASH. Post, May 19, 2016,

available at https://www.

washingtonpost.com/news/post-natio

n/wp/2016/05/19/ferguson-related-

charges-dropped-against-

washington-post-and-huffington-

post-reporters/?utm_term=.

dia althidaitaiaiaincntintinratinintenininnnmsiimsooaevedas 13

Sara Rafsky, At Occupy protests, U_S.

journalists arrested, assaulted,

Comm. to Protect Journalists,

Nov. 11, 2011, available at

PUN II 5. seresiascensucunttomepascscatonecins 13

xii

Shelley Hepworth, 7racking Trump-

Era Assault on Press Norms,

COLUMBIA JOURNALISM REvV., May 25,

2017, available at https://www.

cjr.org/watchdog/tracking-trump-

assault-press-freedom-media-

ODD nciiccsncecinansinterntsavsiarvdocosenniostinviannnpaneien 7

Steve Myers, News Photographer

Arrested on Long Island for

Videotaping Police, POYNTER,

Aug. 1, 2011, available at

http -/bit ly/BiBeBami ...........cc.cccccsssssecssossoresesseeners 16

Tasneem Raja, Tracking Journalists

Arrested at Occupy Protests,

MOTHER JONES, November

18, 2011, available at

http://www. motherjones.com/

politics/201 1/1 1/tracking-journalists-

arrested-OCCUPYPTOtests.............cccccceeeeeeeeeeeeeeeeenes 13

Thomas Emerson, TOWARD A GENERAL

THEORY OF THE FIRST AMENDMENT 9

Tim Perry, CBS News Journalist relives

his arrest at a Chicago Trump event,

CBS News.com, Nov. 14, 2016,

available at http://cbsn.ws/2iOihvd ...................++ 17

Times Photographer Is Arrested on

Assignment, N.Y. TIMES, Aug. 5,

2012, available at http://nyti.ms/

I GF ccvecccneserccesevccocunnstvcesundsscevcccdunciacasaieeteids 16

Tom Kludt, Reporter wounded during

arrest at event with Virginia GOP

candidate Ed Gillespie, CNN, Nov. |,

2017, available at http://money.

enn.com/2017/11/01/media/shareblue

-reporter-mike-stark-arrested-ed-

Tom Sherwood, Journalists Handcuffed,

Removed from Taxi Commission

Meeting, NBCWashington.com,

June 23, 2011, available at

http:/Mbit. ly/2hQTeELD.............cce.cc-secsseeveeoveeoves 16-17

U.S. Press Freedom Tracker,

https://pressfreedomtracker.us/

QFTOSS CTIMMIMAI-CRATEPD ............00000000scesecererseeeees

INTERESTS OF AMICI CURIAE’

Amici, as described in the Appendix, are twenty-

six of the nation’s leading news organizations and

press advocacy groups, including The National Press

Photographers Association (“NPPA”), The Reporters

Committee for Freedom of the Press, and The Media

Law Resource Center, Inc. “MLRC”).

The membership of NPPA, the nation’s leading

professional organization for photojournalists,

includes photographers, members of the press gener-

ally and citizen journalists, on whose behalf the

NPPA advocates in disputes involving interference

with First Amendment rights to report on news and

matters of public interest. The Reporters Committee

for Freedom of the Press, a voluntary, unincorpor-

ated association of reporters and editors that works

to defend the First Amendment rights and freedom

of information interests of the news media, has

provided representation, guidance and research in

First Amendment and Freedom of Information Act

litigation since 1970. The MLRC, a professional

association founded in 1980 for content providers in

all media and their defense lawyers, provides a wide

range of resources on media and content law, as well

as policy issues, including news and analysis of legal,

legislative and regulatory developments; litigation

' All parties have consented to this amici curiae brief.

Petitioner has filed his consent with the Clerk, and Respondent

consented directly to the undersigned counsel for Amici No

counsel for a party authored this brief in whole or in part, and

no person or entity other than Amuci and their counsel made a

monetary contribution to the preparation or submission of this

brief.

resources and practice guides; and national and

international media law conferences and meetings.

The interest in this case of the NPPA, Reporters

Committee and MLRC, and other undersigned Amici

is to ensure that the crucial role that journalists,

members of the press, and citizen reporters play in

promoting discussion of matters of public concern is

not diminished. The question presented in this case

is of particular importance to the press, whose

institutional role is to serve as a critic and check on

government. If probable cause bars all claims for

retaliatory arrests, the government will be given a

powerful weapon that can be used to chill and intimi-

date journalists.

STATEMENT

Petitioner Fane Lozman is an outspoken critic of

the City of Riviera Beach, Florida. His disputes with

the City Council, particularly over the use of the

power of eminent domain, have spanned over a

decade and already have resulted in one trip to this

Court. Lozman v. City of Riviera Beach, 133 S. Ct.

735 (2013). This case arose from Lozman’s attempt

to address the City Council at an open meeting in

2006. He sought to speak on the subject of govern-

ment corruption, but after just a few seconds the

presiding councilmember attempted to silence him.

Lozman continued talking, however, and was

promptly arrested, ostensibly on charges of

“disorderly conduct” and “resisting arrest without

violence.” Pet. App. 4a. This case squarely presents

the issue of whether the existence of probable cause

defeats a First Amendment retaliation claim as a

matter of law.

It is not uncommon for gadflies like Lozman to

arouse the ire of those they criticize and to face

threats of arrest as a result. See, e.g, Huminski v.

Corsones, 396 F.3d 53 (2d Cir. 2004); Jacobucci v.

Boulter, 193 F.3d 14 (ist Cir. 1999). Such cases

raise important First Amendment questions, for as

this Court has observed, “(t]he freedom of individuals

verbally to oppose or challenge [the government]

without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation

from a police state.” City of Houston v. Hill, 482 U.S.

451, 462-63 (1987). See also Shuttlesworth v. City of

Birmingham, 382 U.S. 87, 90-91 (1965) (disobeying a

police command to move along cannot justify arrest;

such a requirement would constitute “ever-present

potential for arbitrarily suppressing First Amend-

ment liberties,” the “hallmark of a police state”).

These issues are of vital importance to members

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

check on government. As Justice Black wrote, the

Framers of the Constitution “gave the free press the

protection it must have to fulfill its essential role in

our democracy. The press was to serve the governed,

not the governors. The Government's power to

censor the press was abolished so that the press

would remain forever free to censure the Govern-

ment.” N.Y. Times Co. v. United States, 403 U.S.

713, 717 (1971) (Black, J., concurring). When the

press performs this vital role, “the state has a

special incentive to repress opposition and often

wields a more effective power of suppression.” First

Natl Bank of Boston v. Bellotti, 435 U.S. 765, 777

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

GENERAL THEORY OF THE FIRST AMENDMENT 9

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

arrests without constitutional recourse is particu-

larly chilling, because “law enforcement officials ...

are granted substantial discretion that may be

misused to deprive individuals of their liberties.”

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

Such concerns are vividly illustrated by the

record of countries whose journalists lack the shield

of the First Amendment. According to the Commit-

tee to Protect Journalists, 262 reporters and editors

around the world were jailed in 2017 because of their

work. Elana Beiser, Record Number of Journalists

Jailed as Turkey, China, Egypt Pay Scant Price for

Repression, December 13, 2017, https://cpj.org/re-

ports/2017/12/journalists-prison-jail-record-number-

turkey-china-egypt.php. This set a new record, out-

pacing 2016 when 259 journalists were arrested.

Nearly three quarters of those detained were held on

charges of being “anti-state” under various vague

laws. /d.

What distinguishes the United States from these

repressive regimes is our legacy of constitutional

protections, especially the guarantees provided by

the First Amendment. If the Const.tution fails to

provide sufficient breathing space from the threat of

arbitrary arrests, then the freedoms of speech and

press will be eviscerated. The decision in this case

will have ramifications that extend far beyond the

local politics of Riviera Beach, Florida.

SUMMARY OF ARGUMENT

This case arises from the arrest of a lone govern-

ment critic, but the question to be decided has far-

reaching implications for freedom of the press. If the

mere existence of probable cause to make an arrest

for any offense can preclude constitutional claims

alleging First Amendment retaliation, the govern-

ment gains a powerful tool for suppressing critical

news coverage.

In the United States, numerous journalists have

been subjected to arrest merely for doing their jobs.

Although it is rare, newspaper publishers have been

rousted from their homes in the middle of the night

for exposing government corruption. More frequent-

ly, reporters and photographers have been swept up

by police as they try to cover public demonstrations

or to document various forms of police action.

According to the U.S. Press Freedom Tracker, in

2017 alone, 32 journalists were arrested while trying

to document or report the news, see LS. Press Free-

dom Tracker, https://pressfreedomtracker.us/arrest-

criminal-charge, and in the past several years, many

more have been arrested covering such events as

unrest during the presidential inauguration, the

Occupy Wall Street demonstrations, confrontations

in Ferguson, Missouri, and the Black Lives Matter

movement.

Where arrests are motivated by hostility to the

press or out of a desire to control news coverage, a

mere probable cause requirement is not sufficient to

safeguard the vital First Amendment values at

stake. Generalized laws aimed at preserving public

order—such as disorderly conduct or disturbing the

peace—give police virtually uncabined discretion in

deciding who should be arrested and who may be

allowed to report without interference. This Court

has held on numerous occasions that such discretion

can be misused and First Amendment protections

undermined, particularly where press coverage is

unwelcome to those in authority.

The Court should hold that a finding of probable

cause does not bar claims alleging First Amendment

retaliation, and should adopt a standard that appro-

priately accommodates the needs of law enforcement

without encroaching on constitutional protections for

free speech and press. Such a test was articulated in

Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 274 (1977), where, once a plaintiff

has shown a censorial motive, the burden shifts to

the government to show it would have taken the

same action regardless. Such an approach preserves

police officers’ ability to raise probable cause as a

defense, but it does not extinguish First Amendment

claims when government actors purposefully target

members of the press.

ARGUMENT

I. FREEDOM OF THE PRESS IS AT RISK IF

PROBABLE CAUSE SERVES AS AN

ABSOLUTE BAR TO FIRST AMENDMENT

RETALIATION CLAIMS

Because the very purpose of a free press is to act

as an adversary to unchecked governmental power, it

is commonplace for those who exercise that power to

take offense. The current occupant of the White

House has branded the press as the “enemy of the

American people,” and re-tweeted videos of himself

wrestling an anthropomorphized news network to

the ground.? Such hostility to the press is hardly

new, nor is it confined to any political party or level

of government. The Obama Administration prose-

cuted more people for leaks to the press than all

previous presidential administrations combined;*

Nixon had his “Enemies List’* and approved direct

and indirect assaults on press freedom;® Governor

George Wallace of Alabama regularly castigated

* See, eg. Shelley Hepworth, Tracking Trump-Era Assault

on Press Norms, COLUMBIA JOURNALISM REV., May 25, 2017,

https://www.cjr.org/watchdog/tracking-trump-assault-press-

freedom-media-attack.php: Michael M. Grynbaum, 7rump, in

Latest Bout With Media, Conjures Physical Fight With a Foe,

N.Y. TIMES, July 3, 2017, at Alo.

* Joel Simon, Barack Obama's Press Freedom Legacy,

COLUMBIA JOURNALISM REvV., Apr. 3, 2015, https://www.cjr.org/

criticism/barack_obamas_press_freedom_legacy.php (“(T]he

Obama administration has prosecuted more leakers under the

1917 Espionage Act than all former presidents combined.”).

* List of White House ‘Enemies’ and Memo Submitted by

White House Counsel John Dean to the Ervin Committee, Facts

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

https://www.colorado.edu/AmStudies/lewis/film/enemies. htm

(list included political enemies as well as more than 50 news-

paper and TV reporters).

* James T. Hamilton, Attacks on the Press Have Helped

Bring Down a President Before, WASH. MONTHLY, January

12, 2017, https://washingtonmonthly.com/2017/01/12/nixon-and-

trump-past-as-prologue (Nixon “approved illegal wiretaps to

listen into the phone conversations of journalists critical of the

administration. His Justice Department lodged antitrust

charges against the three broadcast networks. He asked FBI

Director J. Edgar Hoover to develop ‘a run down on the

homosexuals known and suspected in the Washington Press

Corps.”).

journalists;* and Louisiana Governor Huey Long

tried to impose a special tax on urban newspapers

that he called a “tax on lying.”’

The contentious relationship between government

and the press occurs naturally and exists by design.

However, it presents a constitutional problem if the

government has at its disposal legal tools that can

facilitate acts of retaliation. In particular, news

gathering can be disrupted where arrests can be

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

press can be intimidated into silence even if there is

no prosecution. Such concerns arise in a variety of

circumstances.

A. Retaliation for Unfavorable Press

Coverage

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

arrest a journalist for publishing a critical story—

° Howell Raines, George Wallace, Segregation Symbol, Dies

at 79, N.Y. TIMES, Sept. 14, 1998, http://*www.nytimes.com/

1998/09/1 4/us/george-wallace-segregation-symbol-dies-at-

79.html (Wallace's “expurgated list of demons’ included

“liberals, Communists, the Eastern press, Federal judges, [and]

‘pointy-headed intellectuals.”).

’ Elizabeth Kolbert, The Big Sleazy, THE NEW YORKER,

June 12, 2006, https://www.newyorker.com/magazine/2006/06/

12/the-big-sleazy (“Long proposed (and, of course, got passed) a

tax on advertising sales by newspapers with a circulation ex-

ceeding twenty thousand. The tax affected primarily the large

dailies in New Orleans, which had always opposed him.”); see

Grosjean v. American Press Co., 297 U.S. 233, 250 (1936)

(“(T]his is not an ordinary form of tax, but one single in kind,

with a long history of hostile misuse against the freedom of the

press.”).

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

Sheriff Joe Arpaio of Arizona arrested the publishers

of Phoenix New Times for publishing articles that

probed the sheriffs commercial real estate holdings

and that exposed his abusive investigation of the

newspaper. Lacey v. Maricopa Cty., 693 F.3d 896,

907-09 (9th Cir. 2012). As the Ninth Circuit

observed, “lilt is hard to conceive of a more direct

assault on the First Amendment than public officials

ordering the immediate arrests of their critics.” /d.

at 917.

The arrests in that case were rationalized in part

on the ground that the publishers of New 7imes had

allegedly violated an Arizona statute that prohibits

publication of personal information about a public

official if such disclosure “posels] an imminent and

serious threat” to the official’s safety. But in a memo

Sheriff Arpaio’s Director of Legal Affairs made clear

the real reason why New 7imes had been singled out

despite publication of the same information on other

websites: “[NJone of these other web cites [sic] are or

have ever been historically anti-Arpaio.” By contrast

New Times “resorted to writing articles against the

Sheriff, using language that is inflammatory, insult-

ing, vituperative, and the like.” /d. at 908.

The County also commenced an investigation of

New Times, demanding, among other things,

information on confidential sources, reporters’ and

editors’ notebooks, memoranda, and other documents

for any story critical of Arpaio. /d. at 909. After

New Times ran a story revealing these demands,

Arpaio's “Selective Enforcement Unit” staged a

nighttime raid and arrested the publishers in their

homes. /d. at 910.

The publishers brought a civil rights claim

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

denied the defendants’ qualified immunity defense.

The court did not address the issue raised in this

case, whether a probable cause finding would have

barred bringing any First Amendment retaliation

claims. /d at 917 n.8. Ultimately, it found the

arrests were not supported by probable cause. /d. at

919. However, if probable cause had existed to make

an arrest, then First Amendment retaliation claims

arguably would have been entirely barred even on

these egregious facts. In any event, it was a close

case. The court suggested that the publishers’ claims

might have been precluded against the sheriff if the

county attorney had “merely communicated that the

statute had been violated, or represented that the

subpoenas were valid.” /d. at 923.

Although rare, this is not an isolated case. Just

this month, a blogger in Texas was arrested on the

felony charge of “misuse of official information” after

she posted information about the suicide of a U.S.

Customs and Border Protection employee in advance

of its official release to the news media. The popular

blogger regularly covers local law enforcement

* Arizona law prohibits unauthorized disclosure of matters

relating to a grand jury proceeding, and New Times had pub-

lished the substance of the subpoenas sent as part of Arpaio's

retaliatory investigation. However, the court held probable

cause was lacking because subpoenas had not been validly

issued pursuant to a grand jury proceeding. Lacey, 693 F.3d at

919. See id. at 923-24.

issues, but had a contentious relationship with some

on the police force because of her widely-viewed

reports from crime scenes.’ Police may not often go

so far as to jail their critics, but they have been

known to use various methods to suppress unfavor-

able news coverage.'° Ironically, if probable cause

were recognized as a bar to retaliation claims,

arrests may become a more common tool, as police

would have a heightened ability to insulate them-

selves from liability.

These cases highlight why the requirement for

probable cause is not sufficient standing alone, and

why the victims of abusive arrests must have an

available First Amendment remedy. As the Ninth

Circuit suggested in Lacey, 693 F.3d at 923, probable

cause might have been present had the facts been

slightly different, yet the need for legal recourse

would have been just as great. In Aeichle v.

Howards, 566 U.S. 658, 668-69 (2012), this Court

° Derek Hawkins, Popular Texas blogger scooped police on a

story. They charged her with 2 felonies, searched her phone

records, WASH. Post, Dec. 22, 2017, available at

https://www. washingtonpost.com/news/morning-mix/wp/2017/

12/22/popular-texas-blogger-scooped-police-on-a-story-so-they-

charged-her-with-2-felonies/?utm_ term=.2d97ded20883.

'° See, e.g., Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th

Cir. 2003) (“Defendants executed a systematic, carefully-

organized plan to suppress the distribution of St Mary's

Today ... to retaliate against those who questioned their fitness

for public office and [| challenged many of them in the conduct

of their official duties.”); Addison v. City of Baker City, 258

F. Supp. 3d 1207, 1216-20 (D. Ore. 2017) (author of editorial

asserting police had violated students’ Fourth Amendment

rights placed on watch list, subjected to police stops, and had

prospective employers cautioned about his stability).

stopped short of finding that probable cause was

sufficient to bar First Amendment retaliatory arrest

claims for good reason. The Court observed that “in

many retaliatory arrest cases, it is the officer bearing

the alleged animus who makes the injurious arrest.”

Id. If probable cause were all that were needed to

bar a First Amendment claim, given the ease with

which it may be asserted to justify an arrest, officials

would be able to retaliate against members of the

press with impunity.

B. Arrests While Covering Public Protests

or Documenting Police Misconduct

The risk of retaliatory arrest is particularly acute

for reporters and news photographers covering public

protests or recording police activity. As documented

by the U.S. Press Freedom Tracker, so far in 2017, at

least 32 journalists have been arrested while seeking

to document or report news. See U.S. Press Freedom

Tracker, https://pressfreedomtracker.us/arrest-crimi-

nal-charge. The examples provided below illustrate

that it is not uncommon for police officers to arrest

journalists for attempting to gather news from the

midst of civil unrest, for persistently asking ques-

tions of public officials, or for videotaping police as

they perform duties in public.

Large-scale protests have become a defining

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

but dubious arrests have greatly hindered the ability

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

much-needed window onto scenes of civil unrest. For

instance, earlier this year police arrested nine jour-

nalists covering the violent protests that attended

President Trump’s inauguration. See Jaclyn Peiser,

Journalist Swept Up in Inauguration Day Arrests

Faces Trial, N.Y. TIMES, Nov. 14, 2017,

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

alexei-wood-journalist-trial-inauguration.html. The

journalists were swept up in the chaotic events of

that day, and arrested together with more than two

hundred protestors. Prosecutors subsequently

dropped the charges against seven of the nine

journalists.

These kinds of “catch and release” arrests are not

unusual. Officers arrested a number of reporters

covering Black Lives Matter protests in Ferguson

and St. Louis, Missouri, including reporters for,

respectively, the Washington Post and Huffington

Post, leading to dropped charges in each case. Niraj

Chokshi, Ferguson-related charges dropped against

Washington Post and Huffington Post reporters,

WASH. Post, May 19, 2016, https://www.washing-

tonpost.com/news/post-nation/wp/2016/05/19/fergu-

son-related-charges-dropped-against-washington-

post-and-huffington-post-reporters/?utm_term=.

c18183a7914a.

Between 2011 and 2012, more than 90 journalists

were arrested while reporting at Occupy Wall Street

protests that occurred around the country. Tasneem

Raja, Tracking Journalists Arrested at Occupy

Protests, MOTHER JONES, November 18, 2011,

http://www.motherjones.com/politics/201 1/1 1/tracking-

journalists-arrested-occupy-protests; see also Sara

Rafsky, At Occupy protests, U.S. journalists

arrested, assaulted, Comm. to Protect Journalists,

Nov. 11, 2011, http://bit.ly/2iZ2Mblp. A North Dakota

judge dismissed riot charges for lack of evidence

after a radio journalist was arrested while covering

protests against the Dakota Access pipeline. Erin

McCann, Judge Rejects Riot Charge against Amy

Goodman of ‘Democracy Now’ Over Pipeline Protest,

N.Y. Times, Oct. 17, 2016, available at

https://www.nytimes.com/20 16/10/18/us/judge-rejects

-riot-charge-against-amy-goodman-of-democracy- now

-over-pipeline-protest. html. By indiscriminately

arresting journalists together with protestors, the

police can—and often do—prevent journalists from

reporting events occurring at the front lines of public

protests, where violent confrontations with police are

most likely to occur and where press scrutiny is most

needed.

Dubious arrests also have prevented journalists

from tenaciously questioning government officials in

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

arrested in the West Virginia State Capitol building

for shouting questions at the Secretary of the

Department of Health and Human Services, Tom

Price, as he walked through a public hallway with

Counselor to the President, Kellyanne Conway. The

reporter was charged with willful disruption of

governmental processes, but this charge was dropped

after prosecutors determined no crime had been

committed. Matt Stevens, Charge Dropped Against

Reporter Whe Questioned Tom Price, N.Y. TIMES,

Sept. 6, 2017, available at https://www.nytimes.com/

2017/09/06/business/media/tom-price-journalist-

arrest. html.

In a similar vein, a reporter was violently

arrested and injured in November of this year after

he refused to stop filming a campaign vehicle used by

Virginia gubernatorial candidate Ed Gillespie, and to

stop posing questions to campaign members. Tom

Kludt, Reporter wounded during arrest at event with

Virginia GOP candidate Ed Gillespie, CNN, Nov. 1,

2017, available at http://money.cnn.com/2017/11/01/

media/shareblue-reporter- mike-stark-arrested-ed-

gillespie/index.html. The practice of arresting jour-

nalists for asking politicians unwanted questions in

public is clearly repugnant to freedoms guaranteed

by the First Amendment. Additionally, journalists

have been arrested and handcuffed while engaged in

newsgathering activities on college campuses, pur-

portedly for “trespassing.”''

Photojournalists are particularly vulnerable to

retaliatory arrests when filming police activity in

public. In one instance, a news photographer was

acquitted of disorderly conduct after being thrown to

the ground and arrested for unobtrusively photo-

graphing police officers assisting the issuance of

liquor citations to two men. See Andrew Metcalf,

Montgomery County Settles First Amendment

Lawsuit with Photographer, BETHESDA MAGAZINE,

March 8, 2017, http-://www.bethesdamagazine.com/

Bethesda-Beat/2017/Montgomery-County-Settles-First-

Amendment-Lawsuit-with-Photographer. Similarly,

in 2011, a videographer was pulled down from his

vantage point and arrested by New York City

Police officers after filming police as they cleared

Zuccotti Park of demonstrators during Occupy Wall

'' Max Zahn, ‘This is unprecedented’ Public colleges limiting

journalist access, COLUMBIA JOURNALISM REV., Dec. 13, 2017,

https://www.cjr.org/analysis/cuny-campus-journalist-

crackdown. php.

Street protests. Editorial, The right to record the

NYPD, N.Y. DAILY NEws, Mar. 26, 2017, http:// www.

nydailynews.com/opinion/record-nypd-article-

1.3008500. Disorderly conduct charges against the

videographer were later dropped.

In another case, Detroit Police arrested a press

photographer after she photographed officers escort-

ing a suspect into a police car and confiscated her

phone, although no charges were ever filed. Freep

Photographer Arrested While Recording An Arrest,

CBSLocal.com, July 16, 2013, available

at http://detroit.cbslocal.com/2013/07/16/freep-photo-

grapher-arrested-while-recording-an-arrest/. In yet

another instance, a credentialed Long Island news

videographer was arrested and charged with ob-

structing governmental administration for videotap-

ing police activity from a public street in the midst of

other bystanders. Steve Myers, News Photographer

Arrested on Long Island for Videotaping Police,

POYNTER, Aug. 1, 2011, http://bit.ly/2i2zBmi (noting

that the charge was later dropped). And in August of

2012, a photographer on assignment for The New

York Times was arrested and charged with obstruct-

ing government administration and resisting arrest

for photographing the arrest of a teenage girl in the

Bronx. Times Photographer Is Arrested on Assign-

ment, N.Y. TIMES, Aug. 5, 2012, http://nyti.ms/

2hk8W4U. !2

‘2 Retaliatory arrests are not limited to police officers trying

to stop the filming of their own activities. Press photographers

and videographers also have been arrested for unwelcome

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

Sherwood, Journalists Handcuffed Removed from Taxi

Arrests such as these thwart the well-established

First Amendment right to record police activity in

public, which is a crucial function journalists must

be able to perform in order to ensure that the police

remain accountable to the public they serve.'? More

importantly, police would have a near-foolproof way

to clear journalists from crime scenes if this Court

were to adopt a rule barring First Amendment

retaliation claims so long as officers could conjure

some argument for probable cause, either at the time

or even long after the fact. This is not an esoteric or

hypothetical concern. Such arrests already are

common. But if the possibility of constitutional

remedies were removed entirely, such arrests would

become a standard tool of controlling the press.

Commission Meeting, NBCWashington.com, June 23, 2011,

http://it.ly/2h9JeLD; David Becker, Detroit Newspaper Photo-

grapher Arrested While Covering Police Action, Petapixel

(reprinted from Detroit Free Press), July 16, 2013, http://it.ly/

2hySmdC; Matt Hamilton, L.A. Times photographer arrested

after covering Nancy Reagan funeral motorcade, L.A. TIMES,

Mar. 9, 2016, http:/Aat.ms/1QFntAG; Tim Perry, CBS News

Journalist relives his arrest at a Chicago Trump event, CBS

News.com, Nov. 14, 2016, http://cbsn.ws/2i0ihvd.

8 Eg, Glik, 655 F.3d at 82-83 (“Ensuring the public's right

to gather information about their officials not only aids in the

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

functioning of government more generally.”). See also Turner v.

Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“Filming the police

contributes to the public's ability to hold the[m] accountable,

ensure that [] officers are not abusing their power, and make

informed decisions about police policy.”). “Every Circuit Court

of Appeals to address this issue (First, Fifth, Seventh, Ninth,

and Eleventh) has held that there is a First Amendment right

to record police activity in public’ and “we join this growing

consensus.” Fields v. City of Philadelphia, 862 F.3d 353, 355-56

(3d Cir. 2017) (collecting cases).

Ul. THE COURT SHOULD ADOPT A STAN-

DARD THAT APPROPRIATELY BALANCES

THE NEEDS OF LAW ENFORCEMENT

WITH FIRST AMENDMENT VALUES

A. The Power to Make Arrests Can

Disrupt Newsgathering and Other

First Amendment Activities

The power to make arrests is the state’s most

direct and tangible limit on individual liberty. The

impact of its misuse is magnified when employed—as

it was in this case—to curtail speech. When it comes

to the press, arrests can be used to disrupt the exer-

cise of First Amendment speech and press rights.

Any retaliatory arrest immediately halts news-

gathering activity and contemporaneous coverage of

events. The cost, time commitment, and distraction

imposed on journalists and/or their press organi-

zations to address the fallout of arrests also detract

from reporting activity.

Such interference with reportage cannot be

remedied in full by post hocremedies. See, e.g., /n re

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

1990) (“even minimal interference with first amend-

ment freedoms causes an irreparable injury”) (citing

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

(1976); Elrod v. Burns, 427 U.S. 347, 373-74 (197. ).

However, the ability to bring civil rights claims can

help ameliorate these burdens. It is particularly

important that a potential First Amendment remedy

be available where the government may attempt to

dissuade reporters or photographers from covering

events where there exists the possibility of public

disorder and clashes between citizens and police.

In such circumstances, the police may be tempted

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

disorderly conduct), obstructing public ways, failure

to comply with a peace officer, or loitering to justify

arrests, particularly where there may be unfavorable

press coverage. Arrests based on probable cause for

violating offenses of such generalized and broad

scope can be especially threatening to First Amend-

ment activities as they are “susceptible to abuses of

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

379 U.S. 536, 551, 554-55 (1965). See also Shuttles-

worth, 382 U.S. at 93 (such amorphous offenses

become “so broad as to evoke constitutional doubts of

the utmost gravity”).

With the breadth of such laws and the ease of

asserting probable cause for their violation, minor

offenses can easily be used as a pretext for a speech-

halting arrest. As a consequence, the “lodging of

such broad discretion in a public official allows him

to determine which expressions of view will be per-

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

This creates “a device for the suppression of the

communication of ideas and permits the official to

act as a censor.” /d. If the presence of asserted

probable cause for such offenses were sufficient to

serve as an absolute bar to First Amendment claims,

law enforcement would have far too much leeway to

curtail protected expression. '4

'* This Court has recognized the need to limit such discretion

in numerous cases. See, e.g., Hill, 482 U.S. at 465 (“[Wle have

repeatedly invalidated laws that provide the police with unfet-

tered discretion to arrest individuals for words or conduct that

annoy or offend them.”); Kolender v. Lawson, 461 U.S. 352, 360-

Such concerns are especially applicable in cases

like this. In Garcia v. Montgomery Cty., 145

F. Supp. 3d 492 (D. Md. 2015), for example, police

arrested a photojournalist for “disturbing the peace”

when he photographed police activity on a public

street. After he was acquitted of the charges, Garcia

filed a Section 1983 claim asserting, among other

things, violations of his First Amendment rights.

The United States Department of Justice filed a

Statement of Interest in support, noting that these

kinds of “discretionary charges, such as disorderly

conduct, loitering, disturbing the peace, and resisting

arrest, are all too easily used to curtail expressive

conduct or retaliate against individuals for exercising

their First Amendment rights,” such that “courts

should view such charges skeptically.” Dep’t of

Justice Statement of Interest, Garcia v. Montgomery

Cty., 2013 WL 4539394 (D. Md. Aug. 23, 2013), No.

JFM-12-3592, at 1. See also Patterson v. United

States, 999 F. Supp. 2d 300, 314 (D.D.C. 2013) (citing

prevalence of “contempt of cop’ arrests” and “wide-

spread practice of [] officers using [] disorderly

conduct law to arrest ... without a legitimate basis”).

61 (1983) (identification requirement unconstitutional because

it accords police “full discretion”); Smith v. Goguen, 415 U.S.

566, 575 (1974) (“Statutory language of such a standardless

sweep allows policemen, prosecutors, and juries to pursue their

personal predilections” thereby “entrusting lawmaking ‘to the

moment-to-moment judgment of the policeman on his beat.”)

(quoting Gregory v. City of Chi, 394 U.S. 111, 120 (1969)

(Black, J., concurring)); Papachristou v. City of Jacksonville,

405 U.S. 156, 170 (1972) (vagrancy ordinance “furnishes a

convenient tool for ‘harsh and discriminatory enforcement by

local prosecuting officials, against particular groups deemed to

merit their displeasure”) (quoting Thornhill v. Alabama, 310

U.S. 88, 97-98 (1940)).

The problem is magnified if the police can try to

justify an arrest after-the-fact by asserting they had

“arguable probable cause.” In this case, for example,

midway through Lozman’s trial, the state switched

theories on what law he supposedly had violated and

for which they had probable cause for his arrest.

Pet. App. 61a-62a (district court allowed defendants

to raise a previously unraised charge). Similarly, in

Garcia, although the plaintiff had been arrested (and

acquitted) on charges of disorderly conduct, in the

ensuing civil litigation the police claimed they should

not be held to account on the theory that probable

cause might have existed to bring other charges.'®

While retaliatory prosecution cases have a charging

instrument that governs any probable cause inquiry,

as Garcia illustrates, arresting officers are not simi-

larly limited, see Garcia, 145 F. Supp. 3d at 519 (cit-

ing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)),

and § 1983 law enforcement defendants are thus free

to “move the goalposts” in ensuing civil litigation for

retaliatory arrests.

The great latitude officers enjoy to make arrests

where they can cite something—anything—that

serves as probable cause is unduly magnified if legal

recourse is blocked by such recitation; this creates

the wrong kinds of incentives. Under qualified

immunity principles, officers already are immunized

from potential liability except where they are plainly

incompetent or knowingly violate constitutional

'° Garcia, 145 F.Supp. 3d at 517-21 (rejecting County's

arguments in ensuing civil case that officers had probable cause

to arrest for hindering arrest of third parties and/or second

degree assault, as lacking objectively reasonable bases).

rights. Malley v. Briggs, 475 U.S. 335, 341 (1986).

So too, law enforcement agencies cannot be held

liable unless an unlawful arrest is pursuant to

department custom or policy. Monel/ v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978). For cases that clear

these hurdles, holding that probable cause to arrest

defeats a First Amendment claim further contracts

the ability of the press and public to remedy constitu-

tional violations.

This leaves journalists, photographers, citizen

reporters and others with even less opportunity to

vindicate their rights. It also instructs law enforce-

ment officers that, even if they know they are

violating well-settled rights, no liability will attach

so long as they can articulate some probable cause

for arrest, even after-the-fact. This, in turn, creates

disincentives to law enforcement agencies to prevent

officers from making constitutionally infirm arrests.

Altogether, these factors increase the incidence of

arrests that interfere with the exercise of basic First

Amendment rights.

B. The Burden Shifting Framework of Mz.

Healthy City School District Board of

Education v. Doyle Strikes the Correct

Constitutional Balance

Under standard First Amendment analysis, the

government has no legitimate power to retaliate

against individuals for engaging in constitutionally

protected activity. Public schools may not fire

teachers for criticizing administrators, Perry v.

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

may not divert prisoners’ mail as punishment for

speaking to the press, Crawford-E/ v. Britton, 523

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

employees for their political affiliations. Heffernan

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

line, official reprisal for protected activity “offends

the Constitution,” Crawford-E/, 523 U.S. at 588 n.10,

and is subject to recovery, Hartman v. Moore, 547

U.S. 250, 256 (2006).

At the same time, the Court has long been

sensitive to the potential for retaliation lawsuits to

hamstring effective administration of government.

Permitting recovery whenever government action is

motivated in any part by improper animus risks

preventing the government from acting in the public

interest. Mt. Healthy, 429 U.S. at 285. For example,

a school administration might be unable to terminate

an underperforming teacher who happens to engage

in protected speech with which the administration

disagrees. /d.

So too has the Court acknowledged the costs of

the unique evidentiary burdens that retaliation

claims place on public officials. Improper animus is

“easy to allege and hard to disprove.” Crawford-E/,

523 U.S. at 585. Retaliation suits therefore may be

less amenable to summary disposition and “impli-

catel[] obvious concerns with the social costs of

subjecting public officials to discovery and trial, as

well as liability for damages.” /d.

To address these problems, this Court long ago

fashioned a burden-shifting framework designed to

“protect[] against the invasion of constitutional

rights without commanding undesirable consequen-

ces not necessary to the assurance of those rights.”

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

Healthy test, the plaintiff bears the initial burden of

demonstrating unconstitutional animus was a moti-

vating factor of an adverse action; the burden then

shifts to the defendant to demonstrate that even

without the impetus to retaliate the defendant would

have taken the action complained of. /d.

The Mt. Healthy test strikes the appropriate con-

stitutional balance for the vast majority of retaliation

claims. In effect, it narrows availability of recovery

to cases where unconstitutional animus is the but-for

cause of official action and ensures that defendants

have an adequate opportunity to defend against

frivolous claims at summary judgment. Most impor-

tantly, it ensures that an individual “is placed in no

worse a position than if he had not engaged in the

[protected] conduct.” Jd. at 285-86.

The Mt. Healthy test is particularly appropriate

in First Amendment retaliatory arrest cases and

neatly affords the presence or absence of probable

cause due evidentiary weight. No doubt, officers

offend the Constitution whenever they arrest an

individual in order to inhibit or penalize the exercise

of First Amendment freedoms. That is true regard-

less of whether there exists probable cause, if the

arrest would not have occurred but for the protected

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

when a public employee may be discharged for no

reason, the government may not discharge the

employee because of their protected speech); Perry,

408 U.S. at 597 (the government may not deny plain-

tiff a benefit because of his protected speech, even if

it could properly deny it for another reason).

Evidence of the presence or absence of probable

cause to arrest will be available to officers in

“virtually every retaliatory arrest case,” Heichle, 566

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

to any claim of retaliation. Its presence may be

“fatal” to a plaintiffs ability to prove the requisite

but-for causation element of a retaliation claim. /d.

Under the standard Mt Healthy framework,

arrestees, like public employees, are left in no worse

a position than if they had not engaged in protected

conduct.

In contrast, requiring arrestees to demonstrate

an absence of probable cause would decisively tip the

scales in favor of defendants, enabling police to

indirectly censor and penalize the exercise of First

Amendment freedoms in ways the government could

not directly command. See supra 9-10, 17-23. A rule

that probable cause bars a retaliatory arrest claim

would immunize these and other government actions

that plainly offend the First Amendment.

That probable cause would bar a Fourth Amend-

ment challenge is irrelevant. The Court already has

made clear that an arrest which is lawful under the

Fourth Amendment may nevertheless violate other

constitutional rights. In Village of Arlington Heights

v. Metropolitan Housing Development Corp., this

Court acknowledged that the Mt. Healthy test

governs retaliation claims premised on alleged racial

discrimination. 429 U.S. 252, 270 n.21 (1977). And

in Whren v. United States, it clarified that the Con-

stitution prohibits selective law enforcement based

on race, notwithstanding the existence of probable

cause. 517 U.S. 806, 813 (1996); see Reichle, 566

U.S. at 664 n.5. If the existence of probable cause is

no bar to an Equal Protection challenge to an arrest,

it should not bar a First Amendment challenge.

Notably, retaliatory arrest claims feature none of

the attributes of retaliatory prosecution claims that

led the Court to impose a no-probable-cause require-

ment in Hartman, 547 U.S. 250. Unlike retaliatory

prosecution plaintiffs (and retaliatory arrest defen-

dants), retaliatory arrest plaintiffs do not always

have access to a distinct body of highly valuable cir-

cumstantial evidence that is available and apt to

prove or disprove probable cause, because retaliatory

arrest plaintiffs often do not even know the reason

for their arrest. See Devenpeck, 543 U.S. at 155

(police officers not constitutionally required to state

reasons for an arrest). More importantly, in contrast

to retaliatory prosecution claims, there is generally

no disconnect between animus and injury in retalia-

tory arrest claims—‘“it is the officer bearing the

alleged animus who makes the injurious arrest.”

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

sumption of regularity accorded to police officers’

arrest decisions that is akin to the presumption of

prosecutorial regularity. /d.

For these reasons, First Amendment retaliatory

arrest claims are best adjudicated under the stan-

dard Mt. Healthy rubric. That standard preserves

police officers’ ability to raise probable cause as a

defense while ensuring they are not insulated from

liability for purposefully abridging and penalizing

the exercise of the freedoms guaranteed by the First

Amendment.

CONCLUSION

The arrests of reporters and photographers

described in this brief “may have taken place in

America,” but they belong “to a society much differ-

ent and more oppressive than our own.” Zossignol,

316 F.3d at 527-28. The Court should adopt a legal

standard that makes clear it is “not for law enforce-

ment to summon the organized force of the sheriffs

office to the cause of censorship.” /d. at 528. Toward

that end, this Court should reverse the decision

below and hold that probable cause does not bar

First Amendment claims for retaliatory arrests.

Respectfully submitted,

Robert Corn-Revere*

Ronald G. London

Davis Wright Tremaine LLP

1919 Pennsylvania Ave., NW

Suite 800

Washington, DC 20006

(202) 973-4200

bobcornrevere@dwt.com

Robert D. Balin

John M. Browning

Davis Wright Tremaine LLP

1251 Avenue of the Americas

New York, NY 10020

John Langford

Media Freedom &

Information Access Clinic

Yale Law School+

P.O. Box 208215

New Haven, CT 06520

Mickey H. Osterreicher

National Press Photographers

Association

120 Hooper Street

Athens, GA 30602

Counsel for Amici Curiae

*Counsel of Record

+ This brief has been prepared with the assistance of Yale

Law School student Catherine Martinez '19.

APPENDIX

The National Press Photographers Association

(“NPPA”) is a 501(c(6) non-profit organization dedi-

cated to advancement of visual journalism in its

creation, editing and distribution. The NPPA’s

approximately 6,000 members include television and

still photographers, editors, students and representa-

tives of businesses that serve the visual journalism

community. Since its founding in 1946, the NPPA

has been the Voice of Visual Journalists, vigorously

promoting the constitutional rights of journalists as

well as freedom of the press in all its forms,

especially as it relates to visual journalism.

The Reporters Committee for Freedom of the

Press is a voluntary, unincorporated association of

reporters and editors that works to defend the First

Amendment rights and freedom of information

interests of the news media. The Reporters Com-

mittee has provided assistance and research in First

Amendment and Freedom of Information Act

litigation since 1970.

The Media Law Resource Center, Inc. (“MLRC”)

is a non-profit professional association for content

providers in all media, and for their defense lawyers,

providing a wide range of resources on media and

content law, as well as policy issues. These include

news and analysis of legal, legislative and regulatory

developments; litigation resources and practice

guides; and national and international media law

conferences and meetings. The MLRC also works

with its membership to respond to legislative and

policy proposals, and speaks to the press and public

on media law and First Amendment issues. The

MLRC was founded in 1980 by leading American

publishers and broadcasters to assist in defending

and protecting free press rights under the First

Amendment.

American Society of News Editors (“ASNE”) is an

organization with some 500 members, that includes

directing editors of daily newspapers throughout the

Americas. ASNE changed its name in April 2009 to

American Society of News Editors and approved

broadening its membership to editors of online news

providers and academic leaders. Founded in 1922 as

American Society of Newspaper Editors, ASNE is

active in a number of areas of interest to top editors

with priorities on improving freedom of information,

diversity, readership and the credibility of news-

papers.

The Associated Press (“AP”) is a news cooperative

organized under the Not-for-Profit Corporation Law

of New York, and owned by its 1,500 U.S. newspaper

members. The AP’s members and subscribers

include the nation’s newspapers, magazines, broad-

casters, cable news services and Internet content

providers. The AP operates from 300 locations in

more than 100 countries. On any given day, AP’s

content can reach more than half of the world’s

population.

Associated Press Media Editors (““APME”) is a

nonprofit, tax-exempt organization of newsroom

leaders and journalism educators that works closely

with The Associated Press to promote journalism

excellence. APME advances the principles and prac

tices of responsible journalism; supports and mentors

a diverse network of current and emerging newsroom

leaders; and champions the First Amendment and

promotes freedom of information.

Association of Alternative Newsmedia (“AAN”) is

a not-for-profit trade association for 130 alternative

newspapers in North America, including weekly

papers like The Village Voice and Washington City

Paper. AAN newspapers and their websites provide

an editorial alternative to the mainstream press.

AAN members have a total weekly circulation of

seven million and a reach of over 25 million readers.

The Authors Guild, Inc. was { nded in 1912, and

is a national non-profit association of more than

9,000 professional, published writers of all

genres. The Guild counts historians, biographers,

academicians, journalists and other writers of non-

fiction and fiction as members. The Guild works to

promote the rights and professional interests of

authors in various areas, including copyright, free-

dom of expression, and taxation. Many Guild

members earn their livelihoods through their

writing. Their work covers important issues in his-

tory, biography, science, politics, medicine, business

and other areas; they are frequent contributors to

the most influential and well-respected publications

in every field.

DKT Liberty Project is a nonprofit organization

dedicated to promoting individual liberty. Founded

in 1997, the Liberty Project is committed to guarding

against encroachment by all levels of government

and protecting the freedom of all citizens to engage

in expression without government interference. DKT

Liberty Project has filed numerous briefs supporting

free speech rights.

Dow Jones & Company, Inc. is a global provider

of news and business information, delivering content

to consumers and organizations around the world

across multiple formats, including print, digital,

mobile and live events. Dow Jones has produced un-

rivaled quality content for more than 130 years and

today has one of the world’s largest newsgathering

operations globally. It produces leading publications

and products including the flagship Wall Street

Journal; Factiva; Barron’s; MarketWatch; Financial

News; Dow Jones Risk & Compliance; Dow Jones

Newswires; and Dow Jones VentureSource.

The Electronic Frontier Foundation (“EFI”) is a

member-supported, nonprofit civil liberties organiza-

tion that works to protect free speech and privacy in

the digital world. Founded in 1990, EFF has over

37,000 members. EFF represents the interests of

technology users in both court cases and broader

policy debates surrounding the application of law to

technology. EFF has filed amicus briefs on many

First Amendment issues, including the right to

record police. See Fields v. City of Philadelphia,

No. 16-1650 (3d Cir.).

First Amendment Coalition is a nonprofit public

interest organization dedicated to defending free

speech, free press and open government rights in

order to make government, at all levels, more

accountable to the veople. The Coalition’s mission

assumes that government transparency and an

informed electorate are essential to a self-governing

democracy. To that end, we resist excessive govern-

ment secrecy (while recognizing the need to protect

legitimate state secrets) and censorship of all kinds.

First Look Media Works, Inc. is a new non-profit

digital media venture that produces The Intercept, a

digital magazine focused on national security report-

ing.

Freedom of the Press Foundation is a non-profit

organization that supports and defends public’

interest journalism focused on transparency and

accountability. The organization works to preserve

and strengthen First and Fourth Amendment rights

guaranteed to the press through a variety of

avenues, including public advocacy, legal advocacy,

the promotion of digital security tools, and crowd-

funding.

The Freedom to Read Foundation is an

organization established by the American Library

Association to promote and defend First Amendment

rights, foster libraries as institutions that fulfill the

promise of the First Amendment, support the right of

libraries to include in their collections and make

available to the public any work they may legally

acquire, and establish legal precedent for the free-

dom to read of all citizens.

Media Coalition Foundation, Inc. is a non-profit

organization, which works to protect the First

Amendment and the public’s right to access the

broadest possible range of information, opinion and

entertainment. The Foundation monitors potential

threats to freedom of speech and engages in educa-

tion and litigation to protect free speech rights.

The Media Consortium is a network of the

country’s leading, progressive, independent media

outlets. Our mission is to amplify independent

media’s voice, increase our collective clout, leverage

our current audience and reach new ones.

MPA — The Association of Magazine Media is the

industry association for multi-platform magazine

companies. Established in 1919, MPA represents

about 100 domestic magazine media companies with

close to 1000 national publications that span an

enormous range of genres, from nationally known

household brands to local and niche enthusiast titles.

In addition to domestic magazine media companies,

MPA’s membership includes international magazine

media companies and associate members that sup-

port the industry throughout the supply chain. MPA

is a non-profit organization representing magazine

media, print and digital. MPA provides an organized

forum in which publishers can advance their com-

mon interests. MPA has a long history of defending

free speech and the First Amendment. MPA is the

primary advocate and voice for the magazine media

industry, driving thought leadership and game-

changing strategies to promote the medium’s vitality,

increase revenues and grow market share. MPA is

headquartered in New York City, with a government

affairs office in Washington.

New York News Publishers Association

(““NYNPA”) is the non-profit trade association rep-

resenting the newspapers of New York State, which

have a combined readership of more than five million

people. NYNPA is the principal professional associ-

ation representing New York State’s newspaper

industry in governmental, regulatory, and other

matters.

The New York Press Club is an association of and

for working journalists and media professionals.

Founded in 1948, its membership includes profes-

sionals from all types of news organizations includ-

ing the Web, television, radio, wire services, daily

newspapers, weekly and monthly publications, as

well as professionals from the fields of communica-

tions, public relations and public affairs.

The New York Press Photographers Association

was founded in 1915 and is dedicated to visually

documenting the world around us and serving the

truth through our images.

The New York State Broadcasters Association,

Inc. is a not for profit trade association representing

more than 400 radio and television stations through-

out the state of New York. Providing news and infor-

mation to the citizens of New York State is a corner-

stone of our public interest obligation to serve our

local communities. In order to fulfill this vital role

under the First Amendment, The New York State

Broadcasters Association, Inc. has a direct interest in

ensuring that its members are able to obtain access

to information.

Online News Association (“ONA”) is the world’s

largest association of online journalists. ONA’s

mission is to inspire innovation and excellence

among journalists to better serve the public. ONA’s

more than 2,000 members include news writers,

producers, designers, editors, bloggers, technologists,

photographers, academics, students and others who

produce news for the Internet or other digital

delivery systems. ONA hosts the annual Online

News Association conference and administers the

Online Journalism Awards. ONA is dedicated to

advancing the interests of digital journalists and the

public generally by encouraging editorial integrity

and independence, journalistic excellence and free-

dom of expression and access.

Reporters Without Borders has been fighting

censorship and supporting and protecting journalists

since 1985. Activities are carried out on five

continents through its network of over 150

correspondents, its national sections, and its close

collaboration with local and regional press freedom

groups. Reporters Without Borders currently has 10

offices and sections worldwide.

Society of Professional Journalists (“SPJ”) is

dedicated to improving and protecting journalism. It

is the nation’s largest and most broad-based jour-

nalism organization, dedicated to encouraging the

free practice of journalism and stimulating high

standards of ethical behavior. Founded in 1909 as

Sigma Delta Chi, SPJ promotes the free flow of

information vital to a well-informed citizenry, works

to inspire and educate the next generation of journal-

ists, and protects First Amendment guarantees of

freedom of speech and press.

The Tully Center for Free Speech began in Fall,

2006, at Syracuse University’s S.I. Newhouse School

of Public Communications, one of the nation’s

premier schools of mass communications.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.