Institute for Free Speech Files Amicus Brief to Protect Speakers from Retaliatory Arrests

The Institute’s brief in Gonzalez v. Trevino aims to protect the right of plaintiffs to sue when government officials retaliate against constitutionally protected

December 19, 2023   •  By IFS Staff   •    •  
Default Article

Washington, DC — The Institute for Free Speech has filed an amicus brief in the case Gonzalez v. Trevino, urging the Supreme Court to overturn a Fifth Circuit ruling that makes it nearly impossible for citizens to hold police accountable for retaliatory arrests aimed at silencing criticism.

Police arrested Sylvia Gonzalez, a 72-year-old grandmother and city councilwoman in Kleberg County, Texas, after she had spearheaded a petition criticizing the city manager’s performance. The charge: tampering with government records, because Gonzalez had briefly and inadvertently included the petition in her binder at a city council meeting before returning it. Despite the fact that Ms. Gonzalez never removed any documents from city property, she spent a traumatic day in jail over the minor mistake.

Ms. Gonzalez sued the police for a retaliatory arrest stemming from her constitutionally protected speech, but the U.S. Court of Appeals for the Fifth Circuit imposed stringent requirements that prevented her from even receiving a trial for her claims. The Fifth Circuit’s expansive view of a recent Supreme Court opinion, Nieves v. Bartlett (2019), creates special barriers for plaintiffs in virtually any retaliatory arrest case. As a result, the Fifth Circuit excused the officials who ordered Ms. Gonzalez’s arrest.

In its amicus brief, the Institute for Free Speech argues that the Fifth Circuit took Nieves too far in foreclosing retaliation claims where free speech is concerned, ignoring the Supreme Court’s carefully crafted limits on Nieves. Officials should not have unchecked discretion to use minor infractions to punish or chill dissent. The Institute proposes a balanced framework that would hold officials accountable for proven retaliation while avoiding baseless lawsuits.

“Supreme Court precedent recognizes that the immense coercive power of arrest, even without charges or conviction, can severely chill free expression,” noted Alan Gura, Vice President for Litigation at the Institute for Free Speech. “Officials should not be permitted to weaponize minor lapses as a pretext to silence critics. The Fifth Circuit’s decision is at odds with core First Amendment principles.”

The Supreme Court’s decision in Gonzalez v. Trevino will significantly impact Americans’ ability to exercise free speech rights without fear of retaliation from those wielding the formidable force of criminal law enforcement.

To read the amicus brief in the case, Gonzalez v. Trevino, click here.

About the Institute for Free Speech

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.

IFS Staff

Share via
Copy link
Powered by Social Snap