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Supreme Court Revisits Retaliatory Arrest Claims

June 20, 2024


Prof. Tobias Barrington Wolff comments on the Supreme Court’s ruling on the contrasting views of Justices Alito and Jackson regarding claims of arrest in response to protected speech. 

The Supreme Court has issued a per curiam opinion in Sylvia Gonzalez, Petitioner v. Edward Trevino, II, et al, in which the court agreed with the petitioner that requiring her to provide examples of people who also mishandled a government petition but were not arrested “goes too far.” The Court sent the case back to the lower courts to take another look at whether her evidence satisfied the exception outlined in Nieves v. Bartlett, which holds that although plaintiffs must generally show that police did not have probable cause to arrest them, they can also show that they were arrested when others who had not been engaged in protected speech would not have been.

Tobias Barrington Wolff, Jefferson B. Fordham Professor of Law Tobias Barrington Wolff, Jefferson B. Fordham Professor of LawTobias Barrington Wolff, Jefferson B. Fordham Professor of Law at the University of Pennsylvania Carey Law School, observes that the real substance lies in the opinions issued by various Justices.

“The most interesting debate in today’s First Amendment ruling comes not in the short opinion for the Court but in the concurring opinions of Justices Alito and Jackson,” said Wolff. “Justice Alito, writing only for himself, attempts to characterize the Court’s precedents as adopting a narrow, ungenerous standard toward the evidence a person must produce if they wish to pursue a claim for retaliatory arrest. Justice Jackson, joined by Justice Sotomayor, responds with a more pragmatic account, describing the wide range of evidence she believes would constitute objective support for a claim that an arrest was made in retaliation for protected speech. These claims are always difficult to prove but the very fact that the Court decided to take this case and reverse the Fifth Circuit suggests that Justice Jackson’s account is the more credible one.”

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