Though the constitutionality of the health-care law has consumed most of the U.S. Supreme Court’s attention recently, the court of course continues to grapple with other weighty matters. One of the most important of those was argued on March 21, when the court took up the issue of constitutional liability when law-enforcement officers arrest people in retaliation for the exercise of their First Amendment rights.
That issue is presented by Reichle v. Howards,1 a case that arose out of a 2006 incident in which a man whom Secret Service agents overheard making a comment critical of former Vice President Dick Cheney arrested the man after he touched Cheney. The question presented by the case is whether the existence of probable cause bars a First Amendment retaliatory-arrest claim, even when the arrest in fact is made for retaliatory reasons. If decided the wrong way, this case could eviscerate the First Amendment by allowing officers to target protesters so long as the officers can conjure up some colorable basis for asserting even a minor violation of the law.
Mixed-Motive Cases
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