You Have the Right to Free Speech: Retaliatory Arrests and the Pretext of Probable Cause

Authors

Katherine G. Howard, University of Georgia School of Law

Publication Date

2017

Abstract

An important question about an individual's First
Amendment freedoms arises when a citizen or journalist is
arrested while verbally challenging, filming, or writing
about police actions. Did the police officer have legitimate
law enforcement reasons for the arrest, or was the arrest in
retaliationfor engaging in First Amendment activities the
officer did not like? Courts have grappled with the best
way to resolve this question, often importing the Fourth
Amendment's bright-line rule about probable cause into
analyses of FirstAmendment retaliatoryarrest claims and
barringthose claims were the officer had probable cause to
arrest. This Note argues that when retaliatory arrest
claims are appropriately viewed within the framework of
First Amendment jurisprudence-including the special
timeliness and chilling effect associated with free speech
claims-it becomes clear that the existence of probable
cause should not bar a First Amendment claim for
retaliatory arrest. Although probable cause may be
evidence that the arrest was not, in fact, retaliatory, it can
also be used as pretext to hide the fact that the arrest was
made in retaliation against an individual's speech.
Instead, as in discrimination cases, plaintiffs should be
afforded the opportunity to demonstrate whether the
probable cause was pretext to hide the unconstitutional
retaliation

Recommended Citation

Howard, Katherine G. (2017) "You Have the Right to Free Speech: Retaliatory Arrests and the Pretext of Probable Cause," Georgia Law Review: Vol. 51: No. 2, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol51/iss2/7