Legal/Law/Criminal Justice and Reform

‘Backdoor Censorship’: Supreme Court Asked To Weigh In On Gov Attempts To Quash Free Speech With Unrelated Charges

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• A 72-year old city council member is asking the Supreme Court to affirm her First Amendment rights after local officials allegedly had her arrested in retaliation for criticizing the city manager.
• Groups from the American Civil Liberties Union (ACLU) to the Thomas More Society are backing Gonzalez’s appeal to the Supreme Court after the Fifth Circuit determined she failed to demonstrate a violation of her constitutional rights.
• “As long as a government can find a law to charge you with, and there is probable cause for that, then they can throw you in jail for expressing protected speech,” Institute for Justice attorney Anya Bidwell told the Daily Caller News Foundation.

After Sylvia Gonzalez criticized the city manager, local officials cited an uncommon statute to issue a warrant for her arrest, snap a mugshot and force her to spend a day in jail—now, she’s asking the Supreme Court to affirm her First Amendment rights.

As a newly-elected city council member in Castle Hills, Texas, 72-year-old Gonzalez backed a citizen’s petition advocating for the removal of city manager Ryan Rapelye, which was submitted to the mayor during a city council meeting. Gonzalez, who sat next to the mayor, unintentionally gathered it together with the other papers on her side at the meeting’s end, discovering it minutes later in her binder when the mayor asked her to check there, according to court documents.

Though the mayor, JR Trevino, initially said she “probably picked it up by accident,” he later filed a complaint: Gonzalez was ultimately charged with tampering with a government record.

“There are so many laws on the books that it’s hard to avoid violating a law,” her lawyer, Institute for Justice (IJ) attorney Anya Bidwell, told the Daily Caller News Foundation. “As long as a government can find a law to charge you with, and there is probable cause for that, then they can throw you in jail for expressing protected speech.”

Despite evidence of retaliation—the police chief and the mayor were allies of the city manager, Bidwell said—the Fifth Circuit held Gonzalez failed to show a violation of her constitutional rights. Under the Supreme Court’s 2019 case, Nieves v. Bartlett, a claim of retaliation cannot proceed if there is probable cause, unless the plaintiff can prove that “otherwise similarly situated individuals not engaged in the same sort of protected speech” were not arrested.

A split across circuit courts in deciding what satisfies the evidence standard set out in Nieves makes it vital for the Supreme Court to take up Gonzalez’s case, Bidwell said. Groups across the ideological spectrum agree: organizations from the American Civil Liberties Union (ACLU) to the Thomas More Society are noting the dangers of retaliatory arrests following protected speech.

“Pro-life advocacy is controversial speech to many, and many of those who find it controversial occupy politically influential positions in places where pro-life views are less than popular,” the Thomas More Society wrote in a brief. “Consequently, pro-life advocates are not infrequently the recipients of novel and strained interpretations of criminal law in efforts to stifle their speech.”

In Gonzalez’s case, there was clear evidence of retaliation, Bidwell said. The city attorney also tried to remove her from her seat over a technicality in the administration of her oath of office. A public information request by the Institute for Justice revealed no examples of charges brought for theft of a citizen’s petition.

Moreover, Bidwell noted, it took over two months to come up with the crime.

In his dissent from the Fifth Circuit’s decision not to rehear Gonzalez’s case, Circuit Judge James Ho said that “the opportunity for public officials to weaponize the criminal justice system against their political adversaries has never been greater.”

Bidwell said retaliatory arrests, which IJ calls “backdoor censorship,” are a “pretty regular practice.”

In one case IJ took to the Sixth Circuit, a man from Parma, Ohio, was arrested for creating a parody Facebook page of his local police department. The Supreme Court declined to hear his appeal, which was backed by The Babylon Bee, The Onion and the Foundation for Individual Rights and Expression (FIRE), in February.

In another IJ case, a Fort Bend County, Texas, citizen journalist was arrested after recording a police interaction during a mental-health call.

The Supreme Court won’t decide whether it is taking Gonzalez’s case until its long conference at the end of September. However, it has asked the mayor to file a reply brief by June 14.

“The Supreme Court created this probable cause rule for split second arrests…[when] a police officer needs to make a split second decision to arrest somebody who is disturbing the peace at this particular moment,” Bidwell said. “It did not intend this rule to basically bless deliberate, over-tight scheming to punish people for speech.”

Trevino and the ACLU did not immediately respond to a request for comment.