NPPA files amicus brief in U.S. Supreme Court case joined by 30 media and free speech organizations
On October 9, 2018, the NPPA, joined by 30 media and free speech organizations, filed an amicus brief in a case to be heard by the U.S. Supreme Court. That case, Nieves v. Bartlett, involved an arrest by police of an Alaskan man for disorderly conduct who then sued the officer for false arrest, false imprisonment, and retaliatory arrest, claiming that he was arrested, not for violating the law, but in retaliation for his initial refusal to speak with the officer.
On appeal, the dismissal of all but the retaliatory arrest charge was upheld by the U.S. Court of Appeals for the Ninth Circuit, ruling that while there may have been probable cause for the arrest, such a finding did not bar the claim that the arrest was in retaliation for exercising his First Amendment rights.
Although this case does not involve a journalist, NPPA asserts that “the question presented – does the existence of probable cause defeat a First Amendment retaliatory arrest claim as a matter of law in a federal civil rights case – 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.”
The brief urges the High Court to “hold that probable cause does not strictly bar claims alleging First Amendment retaliation” and “adopt a standard that appropriately accommodates the needs of law enforcement while adequately preserving constitutional protections for free speech and press.”
Such a test was articulated in another Supreme Court case where once a plaintiff has shown a ”censorial motive, the burden shifts to the government to show it would have taken the same action regardless. Such an approach preserves police officers’ ability to raise probable cause as a defense, but it does not extinguish First Amendment claims when government actors purposefully target members of the press.”
We are extremely concerned that this case may have unintended and detrimental consequences for journalists and all those exercising their First Amendment rights. As noted in the brief, journalists and news photographers are often interfered with and arrested while doing their jobs when law enforcement attempts to avoid press scrutiny. In 2017, 34 journalists were arrested covering news stories, in particular, protests during President 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.
In order to preclude a further chill of such fundamental rights, the brief concluded by urging the Court to affirm the Ninth Circuit’s decision and “hold that probable cause does not bar First Amendment claims for retaliatory arrests.”
The brief was drafted by Rob Balin and Abigail Everdell of Davis Wright Tremaine along with NPPA general counsel Mickey H. Osterreicher, with the assistance of Chuck Sims and his students at the Yale Law School Media Freedom & Information Access Clinic.
Those joining the brief were: American Society of News Editors, Associated Press; Associated Press Media Editors, Association of Alternative Newsmedia, Association of Magazine Media, Brechner Center for Freedom of Information, Buzzfeed, California News Publishers Association, Center for Investigative Reporting, Digital First Media, Electronic Frontier Foundation, First Look Media Works, Inc., Freedom to Read Foundation, Gannett Co., Inc., International Documentary Association, Investigative Reporting Workshop, Los Angeles Times Communications LLC, The Media Consortium, Media Coalition Foundation, The Media Institute, New York State Broadcasters Association, Inc., Online News Association, PEN American Center, Radio Television Digital News Association, The Reporters Committee for Freedom of the Press, Reporters Without Borders, E.W. Scripps Company, Society of Professional Journalists, The Seattle Times Company, Tully Center for Free Speech, and The Washington Post.