Intro.9.2.23 Gonzalez v. Trevino: Free Speech, Retaliation, First Amendment

The Free Speech Clause of the First Amendment prevents the government from unduly abridging the freedom of speech.¹ Though the Clause refers to Congress and making law, its prohibition extends beyond legislative acts to all branches and offices of government.² In particular, individuals may initiate legal proceedings against federal or state officials for violating their right to free speech.³ One basis for such a claim may be that an official took adverse action against the individual in response to the individual engaging in protected speech.

The Supreme Court has held that a plaintiff claiming to have suffered retaliation in violation of the Free Speech Clause must first demonstrate that the plaintiff engaged in constitutionally protected speech and such speech was a motivating factor behind the official’s adverse action.⁴ If the plaintiff demonstrates this, the official must show that it would have taken the same action absent the protected speech.⁵ The Supreme Court has held that a plaintiff alleging retaliatory prosecution—that is, being charged with a crime in retaliation for speech—must also prove that their prosecution was not supported by probable cause, as required by the Fourth Amendment.⁶ In Nieves v. Bartlett, the Court recognized an exception to the probable cause rule, holding that a plaintiff alleging retaliatory arrest need not show a lack of probable cause if the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.⁷

In Gonzalez v. Trevino, the Court is asked to weigh in on the scope and application of the probable cause exception articulated in Nieves. Sylvia Gonzalez, a former city council member, organized a petition while in office to oust the city manager.⁸ Later, Gonzalez was arrested on charges that she violated a government records law after placing the petition in her personal binder at the conclusion of a city council meeting.⁹ The charges against Gonzalez were later dismissed by the district attorney.¹⁰ Gonzalez brought a civil action against three city officials alleging that her arrest was retaliatory in violation of the First Amendment.¹¹ Gonzalez provided data taken from county records that the crime with which she had been charged had never been used in similar circumstances.¹²

A federal district court held that Gonzalez’s evidence of general charging data was sufficient to invoke the Nieves exception and she therefore did not need to demonstrate a lack of probable cause for her arrest.¹³ The U.S. Court of Appeals for the Fifth Circuit reversed.¹⁴ The Fifth Circuit observed that the language of Nieves speaks of comparative evidence . . . of otherwise similarly situated individuals who engage in the same conduct.¹⁵ The court concluded that general data that the charge had never been used in similar circumstances did not meet this standard.¹⁶ Gonzalez appealed to the Supreme Court. In addition to arguing that objective evidence, including charging data, may satisfy the Nieves exception, Gonzalez argues more broadly that the lack of probable cause requirement applicable in retaliatory arrest cases should not apply to her case, because the requirement applies only when the claims are based on split-second decisions to arrest.¹⁷

• QUESTIONS PRESENTED TO THE SUPREME COURT:

  • Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened.

  • Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests. ¹⁸

• CONSTITUTIONAL PROVISION IMPLICATED: First Amendment, Free Speech Clause

• CONSTITUTIONAL TOPIC: Freedom of Speech

• SUPREME COURT DOCKET NUMBERS: 22-1025¹⁹

• APPEAL FROM: U.S. Court of Appeals for the Fifth Circuit

• LOWER COURT CASE NUMBER: 21-50276

• DECISION BELOW: 42 F.4th 487

• ORAL ARGUMENT: March 20, 2024²⁰

• FINAL DECISION: Pending