Criticize government, get arrested!

Civil liberties organization says Supremes need to create 'deterrent'

Published: 1 day agoby Bob Unruh

A major civil liberties organization has filed a brief in a case heading to the U.S. Supreme Court that asks the justices to create a deterrent to government agents who would arrest individuals in retaliation for their speech.

The friend-of-the-court filing comes from the Rutherford Institute in the case Virgil D. Reichle Jr. and Dan Doyle vs. Steven Howards.

Howards was at a Colorado shopping mall with his son when he learned that then-Vice President Dick Cheney was there. Howards decided to approach Cheney and express his opposition to the war in Iraq.

The Institute said Howards “made a telephone call in which he was heard to say that he was going to ask Cheney ‘how many kids he’s killed today.’ The Secret Service agent who overheard Howards’ conversation alerted other agents on the detail to monitor Howards.”

The man eventually told Cheney his policies in Iraq “are disgusting,” and when Cheney turned to walk away, Howards “lightly touched” Cheney’s shoulder.
Federal agents conferred, questioned Howards and eventually arrested him for “assaulting” Cheney.

Howards sued under the First Amendment, alleging retaliation against him for engaging in unpopular or critical speech.

“This case will affect the right of Americans to petition the government for a redress of grievances – whether that petitioning takes the form of a shouted statement to the president or a sign that is critical of Congress,” said John W. Whitehead, president of the Rutherford Institute.

“If Americans are not able to challenge law enforcement officials over retaliatory arrests under the First Amendment, few, if any, checks will remain to deter government officials from employing intimidating tactics designed to chill the exercise of unpopular or critical political speech.”

Charges against Howards eventually were dropped, and his lawsuit alleged the agents violated his rights under the First Amendment. The agents said because Howards had denied touching the vice president, they had probable cause to arrest him for lying to a federal official.

At the appellate level, in Denver’s 10th U.S. Circuit Court of Appeals, justices reinstated Howards’ First Amendment claim, and the question now is pending before the U.S. Supreme Court.

The brief explains that those who criticize the government “have historically faced the wrath of government officials who desire to squelch criticism.”

It continues, “If a remedy for retaliatory arrests in made practically unavailable, government officials will feel emboldened to target their critics and unpopular speech will be chilled. It is crucial that an effective deterrent remain in place to prevent invidious discrimination on the basis of the exercise of freedom of speech.”

“Restrictions on speech run afoul of the First Amendment when they produce a fear of punishment or sanction that inhibits the exercise of protected speech, even if the restrictions would otherwise be permissible,” the brief argues. “A chilling effect on First Amendment rights constitutes injury-in-fact…

“The availability of claims for retaliatory arrest serves to prevent and deter the government from imposing a chilling effect upon the speech of citizens,” it argues. “Recognition of a retaliatory arrest cause of action serves as a deterrent upon law enforcement officials who might use their power to prevent and intimidate persons from criticizing the government.”

At the lower court level, the agents had argued that if there was probable cause for an arrest on any allegation, they should be protected.

That, however, “would add substantially to the plaintiff’s burden and likely would prevent almost any plaintiff from prevailing on a retaliatory arrest claim … The petitions and the United States have argued, and the 10th Circuit understood, that the proposed ‘no probable cause’ element would require the plaintiff to show that, at the time of the arrest, there was no probable cause to arrest the plaintiff not for the crime for which he or she was arrested, but for any crime. Effectively, this would require the plaintiff to prove not just that he or she was innocent of every existing crime at the time of the arrest, but that there was no reason even to believe that he or she committed any crime at all.”

Most important, though, is the discouragement that would be created for interaction between government officials and citizens.

“The First Amendment guarantees citizens the right to petition at the very least the Legislative and Executive branches. … This right has no clearer expression than in petitions made directly and in person to senior officials,” the brief explains. “Chilling this activity strikes at the very core of the American tradition of representative democracy.”

Criticize government, get arrested!