Supreme Court Considers a Thorny Question of Free Speech and Police Power

WASHINGTON — The Supreme Court considered Monday whether to allow lawsuits claiming abuse of police power in retaliation for exercising free speech rights. The case concerned a claim for retaliatory arrest at a festival in a remote part of Alaska, but several justices seemed to have an array of controversies in mind.

“You can think of it,” Justice Elena Kagan said, “as a case where an individual police officer, you know, decides to arrest for jaywalking somebody wearing a ‘Black Lives Matter’ T-shirt or, alternatively, a ‘Make America Great Again’ cap.”

Some courts have said the existence of probable cause for the arrest — the person was, after all, jaywalking — is always enough to bar lawsuits claiming retaliation in violation of the First Amendment. Others have allowed juries to decide whether the officers involved intended to suppress protected speech.

The Supreme Court has struggled to find a line separating two kinds of arrests, Justice Samuel Alito said, noting that “there are a range of cases.”

At one extreme, he said, were people arrested after mouthing off to the police in heated and confusing settings. “One of them says something insulting to the officer, and that person ends up getting arrested,” Alito said.

On the other, he went on, were serious abuses. “A journalist has written something critical of the police department,” he said. Some time later, that hypothetical journalist, he said, was arrested for exceeding the speed limit by 5 mph.

Alito suggested that the Supreme Court would have a difficult time fashioning a standard that would bar the first kind of suit but allow the second one.

“Which of these unattractive rules should we adopt?” he asked.

The case argued Monday arose from an encounter at the Arctic Man ski and snowmobile event in the remote Hoodoo Mountains of interior Alaska. Chief Justice John Roberts suggested that the setting alone should give officers some leeway.

“You’ve got 10,000 mostly drunk people in the middle of nowhere and you’ve got eight police officers,” he said.

The plaintiff, Russell P. Bartlett, was arrested after yelling at police officers and refusing to answer questions. Afterward, Bartlett said, one officer told him, “Bet you wish you would have talked to me now.”

He was charged with disorderly conduct and resisting arrest, but prosecutors dropped the charges, saying it was too expensive to pursue them given the distances involved. Bartlett sued, saying he had been arrested for exercising his First Amendment rights.

Alito suggested that Bartlett’s statements were not especially worthy of protection.

“Did your client say anything that was of social importance?” Alito asked Zane D. Wilson, a lawyer for Bartlett. “He’s not protesting some social issue or making some important point. He’s involved in a personal dispute with a police officer.”

Wilson disagreed. “The right to criticize a police officer,” he said, is “one of the distinguishing features between a police state and a free country.”

The case, Nieves v. Bartlett, No. 17-1174, was the court’s third attempt to answer the thorny question of whether the existence of probable cause was always enough to defeat a lawsuit claiming retaliatory arrest. The Supreme Court agreed in 2011 to decide the question but ended up ducking it.

In June, the court ruled that Fane Lozman, a critic of a Florida city who was arrested at a City Council meeting, could pursue a case for retaliatory arrest, but only because the city appeared to have had an established and official policy of harassing him.

In 2006, the Supreme Court ruled in Hartman v. Moore that government officials could not be sued under the First Amendment for retaliatory prosecutions where there was probable cause to pursue the prosecution. The question Monday was whether the same rule should apply to arrests.

Justice Stephen Breyer seemed eager to find a compromise that would allow dismissal of many suits at an early stage but allow ones with substantial, objective proof that officers intended to retaliate.

Breyer added that allowing such suits could have unpredictable consequences, among them the possibility that police officers “will be very careful and not arrest people whom they should arrest.”