The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler):
The Supreme Court held recently in Nieves v. Bartlett that to bring a First Amendment retaliatory arrest claim, a plaintiff must generally show that there was no probable cause for the arrest…. [But] this case may not be subject to the general rule of Nieves because the sole basis for probable cause was speech. Besides posting [a parody of a police department Facebook page] to his Facebook page, Novak committed no other act that could have created probable cause.
In other First Amendment retaliation cases on point, by contrast, the defendant's conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something. See, e.g., Nieves v. Bartlett (defendant made remarks to police officers (protected speech) and acted aggressively toward them in an intoxicated state (unprotected conduct)); Reichle v. Howards (2012) (defendant made political remarks (protected speech) and unlawfully touched the Vice President (unprotected conduct)); Swiecicki v. Delgado (6th Cir. 2006), 463 F.3d at 491–92 (defendant made comments to the officer (protected speech) and engaged in disorderly conduct while intoxicated (unprotected conduct)). Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.
This is important because in Nieves and its predecessors, the Court based its reasoning on the thorny causation issue that comes up in cases with both protected speech and unprotected conduct. The idea is that in cases where the plaintiff both did something and said something to get arrested, the factfinder will not be able to disentangle whether the officer arrested him because of what he did or because of what he said. "[R]etaliatory arrest cases … present a tenuous causal connection between the defendant's alleged animus and the plaintiff's injury." For example, in [an earlier precedent], the Court held there was no retaliation "if the same decision would have been reached absent [plaintiff's] protected speech." Here, that inquiry gets us nowhere because "absent [Novak's] protected speech," there would be no basis for probable cause. So, in this case, the causal connection is not so tenuous. And the reason for requiring that plaintiff show an absence of probable cause where probable cause is based only on protected speech is not so clear.
Second, this case strikes at the heart of a problem the Court has recognized in the recent retaliation cases. "[T]here is a risk that some police officers may exploit the arrest power as a means of suppressing speech." The Court also recognized this risk in Nieves.… Novak's case is prime ground for the pretext that the Supreme Court has worried about.
For one, potential probable cause was based on protected speech alone. That is not dispositive because the officers' consideration of his protected speech may have been "wholly legitimate." But the fact that the arrest was made based only on protected speech at least raises a concern that probable cause "does little to prove or disprove the causal connection" between Novak's criticism of the police and his arrest….
Where a statute gives police broad cover to find probable cause on speech alone, probable cause does little to disentangle retaliatory motives from legitimate ones. Thus, this case raises new questions under Nieves. It may be that, based on the Supreme Court's reasoning in that case and others, the general rule of requiring plaintiffs to prove the absence of probable cause should not apply here. We need not decide that now….
UPDATE: I'm afraid I erroneously omitted the last paragraph when I originally posted this; thanks to commenter Noscitur a sociis for pointing this out.