As we have often noted in our advocacy efforts, visual journalists are being squeezed on all sides — from access to job losses to copyright infringement. A recent decision by the Supreme Court of the United States (SCOTUS) illustrates one of the many challenges that we face, and the work ahead to continue to protect your rights.
In the case of Nieves v. Bartlett, SCOTUS held that the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law in a federal civil rights case unless the person arrested happens to be able to show that “otherwise similarly situated individuals” whose speech differed were not arrested. In practical terms, this means that if police have any probable cause for arresting you, unless you can prove that all others who were doing the same thing were not arrested, a lawsuit claiming that the arrest was retaliation for exercising your First Amendment rights will fail.
The case arose from an arrest by police of an Alaskan man, Russell Bartlett, for disorderly conduct. Bartlett sued the officers for several things, including “retaliatory arrest,” claiming that he was arrested not for violating the law but in retaliation for his initial refusal to speak with police. His claims were dismissed by the trial court. On appeal, the dismissals of all but the retaliatory arrest charge were upheld by the U.S. Court of Appeals for the Ninth Circuit, which ruled that, although there may have been probable cause for the arrest, such a finding did not bar the man’s civil rights lawsuit against police (under 42 U.S.C. Section 1983) alleging that the arrest was in retaliation for exercising his First Amendment rights. In a 6-3 opinion, SCOTUS reversed that decision.
Having been very successful over the years in urging many of the U.S. circuit courts of appeals to recognize the right of citizens and journalists to photograph and record police performing their official duties in a public place as being “clearly established,” the NPPA was very concerned about the outcome in this case. Joined by 30 media and free speech organizations, NPPA filed an amicus brief in Nieves because even though the person arrested was not a journalist, the question before the court was (and still is) “of particular importance to the press, whose institutional role is to serve as a watchdog and check on government,” and “if probable cause bars claims for retaliatory arrests, the government will be given unbridled discretion that can be used to chill and intimidate journalists.”
In her partial dissent, Justice Ruth Bader Ginsburg agreed, noting, “I would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”
In another case brought on behalf of an NPPA member against police officers, the U.S. Justice Department cautioned courts to be wary “that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights.” In her full dissent in Nieves, Justice Sonia Sotomayor agreed, writing that “the majority's approach will yield arbitrary results and shield willful misconduct [by police officers] from accountability.” “It is hard to see what point is served by requiring a journalist arrested for jaywalking to point to specific other jaywalkers who got a free pass, for example, if statistics or common sense confirm that jaywalking arrests are extremely rare.”
While the majority of the court concluded that police had probable cause to arrest Bartlett, and that was enough to preclude Bartlett’s claim, Justice Neil Gorsuch also disagreed in part, writing, “In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation’” (emphasis added).
He also observed that “you will find no reference to the presence or absence of probable cause as a precondition or defense to any suit” under Section 1983, noting that the legislative intent of Congress, when it enacted this section of the law in 1871, was not to guard against officers who lack lawful authority to make an arrest but, rather, “to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason” (emphasis in the original).
As NPPA wrote in our brief, we are concerned about the “unintended and detrimental consequences for journalists and all those exercising their First Amendment rights.” But we are even more disappointed that six justices on the highest court in the land considered these possible results and disregarded them. In its advocacy, NPPA has consistently argued that journalists and news photographers are often interfered with and arrested while doing their jobs when law enforcement attempts to avoid media scrutiny. In 2017 alone, 34 journalists were arrested covering news stories, in particular, protests such as during President Donald Trump’s inauguration. Almost always, these “catch and release” charges are dropped, but by then the ability to gather and disseminate news has been severely chilled.
Given the opinion in Nieves, there is a high probability that such First Amendment protections will be further eroded unless Congress amends Section 1983 to specifically address the court’s flawed and fractured opinion. We will be advocating for that and ask that you urge your congressional representatives to propose and enact such legislation. ■
Got a question or topic for a future column? If you are an NPPA member, send your question to us or find us at an NPPA event. Email Mickey Osterre-icher at [email protected] or Alicia Calzada at [email protected]