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Today’s criminal codes are bloated. Flip through them, and you’ll soon find that police can find a broad or vaguely worded law to arrest almost anyone for almost anything–including arresting their critics. That’s why government critics and dissenters need to have a remedy when officials wrongfully arrest speakers they disagree with.

The Supreme Court of the United States held a few years ago in Nieves v. Bartlett that plaintiffs suing over an arrest made in retaliation for First Amendment-protected speech must show a lack of probable cause. But the Court also created an exception to that rule: Where police technically have probable cause to arrest a speaker but do not usually arrest people for the same conduct, the probable cause does not bar a claim for retaliatory arrest under the First Amendment. Consider jaywalkers. Police usually don’t arrest people for jaywalking. But if police selectively enforced a jaywalking law against a critic or dissenter who skipped the crosswalk, that speaker could sue for First Amendment retaliation. 

Under Nieves’s exception, Sylvia Gonzalez, a 72-year-old, former city councilwoman in Castle Hills, Texas, should have a remedy against local officials for First Amendment retaliation. Those officials arrested Sylvia–an outspoken critic of the city manager–for misplacing a petition to oust the city manager. The statute they relied on? A Texas law intended to punish things like fake government IDs. 

Common sense would dictate that the police usually don’t arrest people for misplacing documents, let alone under that Texas law. While the federal district court agreed, the United States Court of Appeals for the Fifth Circuit did not. Instead, it dismissed Sylvia’s claim, holding that Sylvia could meet the Nieves exception only by showing comparative evidence of individuals who also mishandled a government petition, but were not critics of Castle Hills officials and thus not arrested. In support of Sylvia’s request for rehearing, FIREand the Cato Institute joined the American Civil Liberties Union’s “friend of the court” brief to the Fifth Circuit. 

Yet the Fifth Circuit denied rehearing, leaving in place a rigid view of Nieves’s exception that strips a vital remedy from Americans arrested for their speech and enables police to abuse their discretion against critics without accountability. 

The Supreme Court agreed to hear Sylvia's case. So ��֭����, along with the Cato Institute and the National Association of Criminal Defense Lawyers, is joining the ACLU and ACLU of Texas’s "friend of the court" brief to the Supreme Court. The brief argues that when an arrest is a premeditated attempt to punish someone for speech protected by the First Amendment, then the arrest is clearly an unconstitutional "retaliation." It also explains that there is a real risk that government officials will misuse sprawling criminal codes to silence critics.

In a short per curiam opinion, the Supreme Court agreed that the Fifth Circuit's view of the Nieves exception was too rigid--"overly cramped" in the Court's words. It therefore reversed and remanded so that the lower courts can correctly analyze Gonzalez's arguments.