Law professor Garrett Epps, The Atlantic, June 3, 2019, criticized the recent Supreme Court decision Nieves v. Bartlett, for weakening the free speech rights of ordinary citizens when confronting police officers. Citing the frequency of such encounters and police abuse of citizen rights, Epps says the decision makes it more likely that police can get away with charges of “disorderly conduct” or “failure to obey a lawful order” in retaliation for speech they find egregious. Chief Justice John Roberts with four others ruled that the First Amendment offense should be discounted when there is probable cause for arrest. The plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” And the plaintiff cannot cite statements and motivations of the arresting officer. In dissent, Justice Sonia Sotomayor said the new guidelines ran roughshod over a precedent establishing a two part test for First amendment retaliation, whether the protected speech was a substantial or motivating factor in the incident and if the government can show whether it would have taken the same action even without the protected speech.
For recent FAC coverage on the decision, click here.