Editorial: Don’t let police arrest people for exercising their right to free speech

The Supreme Court this week wrestled with a legal brain teaser that has real-world implications: If the police arrest a citizen as an act of retaliation because he exercised his right to free speech, can he sue them even if the arrest was justified on other grounds?

The justices should answer in the affirmative. Police exercise enormous discretion in deciding whether to make an arrest, especially for minor offenses such as disorderly conduct or harassment. The fact that an arrest can be justified on independent grounds shouldn’t immunize officers whose real motive is to punish someone for exercising the right to free speech — or the right not to speak.

Russell P. Bartlett was arrested in 2014 at “Arctic Man,” an extreme ski and snowmobile event in the Hoodoo Mountains in Alaska, and charged with disorderly conduct and resisting arrest. Bartlett maintains that what he was really arrested for was refusing to speak to one state trooper who was investigating underage drinking at the event and for criticizing another trooper who was questioning a teenager who was staying at Bartlett’s campsite. Bartlett said that when he was arrested and handcuffed, the first trooper said, “Bet you wish you would have talked to me now.”

A prosecutor dropped the charges against Bartlett because of the travel expenses a trial would have incurred. Bartlett then sued the two state troopers who arrested him, under a federal law that authorizes damages for violations of “any rights, privileges or immunities secured by the Constitution and laws.” The U.S. 9th Circuit Court of Appeals ruled that Bartlett could pursue his free-speech retaliation claim even if the arrest had been otherwise justified — that is, that there was probable cause that a crime had occurred.

On Monday, a lawyer for the state of Alaska asked the Supreme Court to reverse that ruling and hold that an arrest based on probable cause can’t give rise to a civil rights suit. That may sound plausible — how could such an arrest also be a violation of the Constitution? But comments by several justices at Monday’s argument demonstrated that it’s not that simple.

Justice Elena Kagan, in an exchange with Alaska’s lawyer, offered the example of a police officer who decides to arrest for jaywalking “somebody wearing a ‘Black Lives Matter’ T-shirt or, alternatively, a ‘Make America Great Again’ cap.” Kagan added that “there are so many laws that people can break that police officers generally look the other way” when it comes to enforcing them. The problem, she said, comes when “you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.”

But some justices also seemed concerned about whether a decision in Bartlett’s favor might encourage a proliferation of lawsuits in situations in which retaliation wasn’t the motive for the arrest. Justice Samuel A. Alito Jr. mentioned a scenario in which police arrive at a scene where two groups of people are shouting at each other and “one of them says something insulting to the officer, and that person ends up getting arrested.”

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Justice Stephen G. Breyer suggested that the court could hand down a compromise ruling that would allow lawsuits only in situations in which there was “objective evidence” that probable cause was a pretext for an arrest. Such evidence could include proof that the person was arrested for conduct that police generally ignored. A higher legal standard could discourage the filing of far-fetched lawsuits.

This the second time in two years the court has addressed these issues. Last June it handed down a narrow decision in a case involving a Florida man who claimed that his arrest at a public meeting was the result of a conspiracy by city officials to intimidate a critic. That ruling didn’t offer satisfactory answers to the larger question. This time, the court should do so.

In a world in which police always acted professionally, it might make sense to assume the fairness of any arrest that can be justified on the grounds of probable cause. In the real world, police sometimes abuse their authority and act with ulterior motives, such as racial animus or a desire to punish someone who dares to express an opinion the officer doesn’t agree with. The justices should find a way to allow victims of such overreaching to have their day in court.

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