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Jerry Rogers sent emails criticizing the lead detective on a homicide case as “clueless” (among other things). The detective’s colleagues in the St. Tammany Parish Sheriff’s Office came to his defense — by violating the law. After convincing a judge to issue an arrest warrant, they arrested Rogers under Louisiana’s criminal defamation statute.

What the officers failed to tell the judge in obtaining that warrant is that Louisiana’s Supreme Court ruled decades ago that the criminal defamation law is unconstitutional when it comes to public officials — like the police detective Rogers criticized. The officers also failed to tell the judge that when they discussed the case with the district attorney’s office, police were told that the law was unconstitutional. That meant that the judge had a distorted view of what the officers knew. Although the officers knew their warrant was constitutionally defective, they arrested Rogers anyway. 

After prosecutors declined to pursue the case, Rogers sued the police officers in federal court for violating his First Amendment rights and for falsely arresting him. When the district court denied the officers qualified immunity, they appealed. 

The First Amendment protects criticizing government officials. On January 27, 2023, FIREfiled an amicus brief principally authored by professor Eugene Volokh, arguing that the district court was correct to deny qualified immunity. On August 9, 2023, a panel of the U.S. Court of Appeals for the Fifth Circuit agreed, summarily affirming the district court.