Individuals may initiate legal proceedings against federal or state officials1 for violating their right to free speech.2 One basis for such a claim may be that an official took adverse action against an individual in response to the individual engaging in protected speech. The Supreme Court has said that retaliation for protected speech “threatens to inhibit exercise of the protected right” and “is thus akin to an ‘unconstitutional condition’ demanded for the receipt of a government-provided benefit.” 3 Examples of actionable retaliation may include adverse employment action taken against government employees,4 certain actions taken by corrections officers against incarcerated persons,5

(witholding the property of an incarcerated individual). or law enforcement actions such as arrest or prosecution.6

One challenge facing courts hearing free speech retaliation claims is how to determine whether adverse action was taken in response to protected speech, rather than for a reason unrelated to constitutionally protected activity. The Supreme Court addressed this issue in Mt. Healthy City School District Board of Education v. Doyle, an employment retaliation case.7

. The Court in Mt. Healthy held that a plaintiff claiming to have suffered retaliation in violation of the Free Speech Clause must first demonstrate that the plaintiff engaged in constitutionally protected speech and that such speech was a “motivating factor” behind the official’s adverse action.8 If the plaintiff demonstrates this, the burden then shifts to the official to show by a preponderance of the evidence that the official would have taken the same action absent the protected speech.9

In Hartman v. Moore, the Supreme Court held that a plaintiff alleging retaliatory prosecution—that is, being charged with a crime in retaliation for speech—must also prove that their prosecution was not supported by “probable cause,” as required by the Fourth Amendment.10

; U.S. Const. amend. IV ( “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” ). The Supreme Court initially declined to extend its holding in Hartman to cases alleging retaliatory arrest.11 In Nieves v. Bartlett, the Court extended the Hartman probable cause requirement to retaliatory arrest claims.12 The Court identified an exception to the probable cause requirement, holding that a plaintiff alleging retaliatory arrest need not show a lack of probable cause if the plaintiff “presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 13 The Court has clarified that the exception in Nieves does not require evidence of “virtually identical and identifiable comparators.” 14 Instead, the Court has recognized that evidence “that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel” —is sufficient to invoke the Nieves exception.15

Footnotes

1

Although the First Amendment applies only to “state action” and thus does not permit lawsuits against individuals, state or federal officials acting in their official capacity are generally engaging in state action for First Amendment purposes. For more information, see .

2

An action brought against a federal official for violating constitutional rights is known as a Bivens action, after the Supreme Court case that established the right to file such an action. Bivens v. Six Unknown Named Agents, 403 U.S 388 (1971). An individual may bring an action against a state official for violating constitutional rights under a federal civil rights statute known as Section 1983. 42 U.S.C. § 1983. For more information on Bivens actions, see .

3

Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998). See generally .

4

See generally .

5

E.g.,

Crawford-El v. Britton,

523 U.S. 574

(witholding the property of an incarcerated individual).

6

E.g.,

Hartman v. Moore,

547 U.S. 250 (2006)

(alleging retaliatory prosecution).

7

Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle,

429 U.S. 274 (1977)

.

8

Id. at 287

.

9

Id.

10

Hartman v. Moore,

547 U.S. at 265–66

; U.S. Const. amend. IV ( “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” ).

11

E.g.,

Reichle v. Howards,

566 U.S. 658, 668–69 (2012)

(declining to decide whether

Hartman

applies to claims of retaliatory arrest);

Lozman v. City of Riviera Beach,

585 U.S. 87, 99 (2018)

( “[W]hether in a retaliatory arrest case the

Hartman

approach should apply . . . or, on the other hand, the inquiry should be governed only by

Mt. Healthy

is a determination that must await a different case.” ).

12

Nieves v. Bartlett,

587 U.S. 391, 401–402 (2019)

.

13

Id. at 407

.

14

Gonzalez v. Trevino,

602 U.S. 653, 658 (2024)

.

15

Id. at 658

.