When can a police arrest violate your right to freedom of speech? That was the issue before the Supreme Court in an opinion they released on Tuesday, Nieves v. Bartlett.
You can imagine how it could. No one wants to get arrested. If police don’t like what you say, they might use detention to retaliate against that speech. The ramifications are both pervasive and pernicious. Consider an officer arresting you for asking to see a search warrant; or, detaining you because he disagrees with your declared opinion about abortion, immigration, or local zoning ordinances. Such circumstances would punish speech, dissuading people in the future from voicing their opinions.
Russell Bartlett accused two Alaska police officers of such a retaliatory arrest, suing them for damages under a federal law that allows such litigation when state officers violate a person’s federal rights. In 2014, Bartlett was attending “Arctic Man,” an event held in Alaska known, the court noted, “for both extreme sports and extreme alcohol consumption.” Late on the event’s final night, Bartlett had several interactions with two Alaskan police officers, Luis Nieves and Bryce Weight. These interactions ended in Bartlett’s arrest for disorderly conduct.
None of the litigants agreed regarding what else happened and why. Bartlett claimed the officers detained him for refusing to speak to them and exhorting others to do the same. The officers responded that they arrested Bartlett due to threatening interactions with them, heightened by his allegedly intoxicated, belligerent state.
The officers’ reply pointed to the other principle at stake in this case. While the Constitution protects free speech, all governments must possess adequate power to enforce valid laws. As Alexander Hamilton wrote in Federalist 70, enforcing the law required “despatch,” meaning speed. Doing so at times required split-second decisions based on less-than-perfect information. To not grant police some leeway in such actions risked undermining, if not crippling, law enforcement. To so undermine or cripple carried its own pervasive and pernicious results — the specter of no protection for law-abiding persons.
In Nieves, the majority sought to respect both principles. It got the vote right, siding with the police officers. In so voting, it almost got the reasoning right, too. But only almost.
The majority opinion, written by Chief Justice John Roberts and joined by five other justices, created a near-blanket protection against suit for officers if they could show any “probable cause” for an arrest.
This position placed a heavy thumb on the scale in favor of law enforcement. Given the inherent difficulties of executing the laws, courts need to give significant deference to police. But two of the case’s concurrences gave persuasive reasons to give less deference than did the majority.
For one, Justice Ruth Bader Ginsburg’s concurrence noted that under the majority’s standard, “only entirely baseless arrests will be checked” for wrongdoing, a standard too-rarely demonstrable. That would leave too many instances where police could use pretext to violate speech.
For another, Justice Neil Gorsuch argued that the majority conflated free speech rights with Fourth Amendment protections against unreasonable arrest. This conflation undersold free speech. The Free Speech Clause protected what you said, regardless of probable cause. Moreover, the federal law at issue made no mention of excusing officers on such grounds, either. “Instead,” he continued, “the statute imposes liability on anyone who, under color of state law, subjects another person ‘to the deprivation of any rights, privileges, or immunities secured by the Constitution.’” Therefore, even if the police’s arrest included probable cause, it still could involve malicious suppression of speech. Such police action still violated that constitutional right, regardless of other factors.
At the same time, both justices recognized that probable cause should play a role. Giving legitimate reasons why someone was arrested helped prove that officers did not retaliate against speech. Those factors should decide this case for the officers. While not a blanket defense, these justices believed probable cause could be a patch in the quilt.
Based on this case’s cacophonous opinions, we have not seen the last of this issue. In the future, the court should continue to respect both free speech rights and the needs of law enforcement. While Chief Justice John Roberts tried to walk this tightrope, his balance was off. Let’s hope it gets corrected next time.
Adam Carrington is assistant professor of politics at Hillsdale College.
