The Supreme Court ruled Tuesday that police couldn’t be sued for arresting a festivalgoer in Alaska who said officers targeted him for exercising his First Amendment rights. Even if they didn’t care for Russell Bartlett’s remarks objecting to police questioning a suspected underage drinker, the officers had probable cause to arrest him for disorderly conduct, Chief Justice John Roberts wrote for the court, and that was enough to quash his lawsuit, the Wall Street Journal reports. For such a suit to proceed, “it is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury,” Roberts said.
The court stopped short of providing police carte blanche to make retaliatory arrests as long as they have probable cause to suspect commission of any crime. The chief justice warned that singling out a police critic for a jaywalking arrest while others cross against the light with impunity could still expose officers to liability. Some justices would have gone further still to protect First Amendment expression from police retaliation. “Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something,” said Justice Neil Gorsuch. “It would be a mistake to think the absence of probable cause is an essential element of a First Amendment retaliatory arrest claim…or that the presence of probable cause is an absolute defense to such a claim.” Justice Ruth Bader Ginsburg made similar points in a separate opinion. The incident took place on the last day of 2014’s Arctic Man—the “polar opposite” of the Nevada desert festival Burning Man, the chief justice quipped.