Probable Cause, Prior Restraint, and Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett

48 Pages Posted: 27 Apr 2020

Date Written: February 7, 2020


Dating back to the Founding, theorists have touted the press’s role in checking government abuse. Predictably, given their adversarial posture vis-à-vis authority, professional and citizen journalists sometimes become the targets of state retaliation and arrest. Pretextual arrests targeting newsgatherers raise significant First Amendment concerns, since even a brief, “catch-and-release” detainment may altogether prevent a newsgatherer from capturing images or disseminating timely news updates from an event. In this sense, arrests of newsgatherers pose similar concerns as prior restraints—they allow authorities to arbitrarily wield broad, censorial power to suppress information before it reaches the marketplace of ideas. A recent Supreme Court decision could make it more difficult for citizens exercising their First Amendment rights, including newsgatherers, to respond to discriminatory arrests. In Nieves v. Bartlett, the Court held that, except for certain, atypical arrests, the existence of probable cause will defeat a First Amendment retaliatory arrest civil damages claim brought under 42 U.S.C. § 1983. The ruling threatens the ability of journalists to bring viable civil claims to help deter pretextual arrests, since probable cause for some minor offense will often be easy to articulate. The decision may also undermine the practical value of recent circuit court decisions recognizing a First Amendment right of citizens to film police and government activities. This Note attempts to chart a path forward from Nieves to vindicate the rights of newsgatherers subjected to suspected pretextual arrests. First, it proposes a common sense reading of Nieves’s atypical arrest exception that will give lower courts the flexibility to consider claims involving suspected retaliatory arrests that target protected speech. Second, this Note argues that Nieves’s no-probable-cause requirement should not apply to retaliatory arrests of newsgatherers that act like prior restraints.

Keywords: First Amendment, prior restraint, probable cause, journalist, Nieves v. Bartlett, § 1983

Suggested Citation

Clayton, John S., Probable Cause, Prior Restraint, and Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett (February 7, 2020). Columbia Law Review, Forthcoming. Available at SSRN:

John S. Clayton (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

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