First Amendment Retaliation

What It Is

A First Amendment retaliation claim alleges that a government official took adverse action against you because you exercised a constitutionally protected right — speech, press, petition, assembly, or religion.

In the § 1983 context, this usually means: you said something (criticized police, filed a complaint, recorded an officer, protested), and they punished you for it (arrested you, charged you, harassed you, retaliated through official channels).

Mental State Standard: Retaliatory Intent

First Amendment retaliation requires proof of subjective retaliatory intent — you must show the officer’s protected-activity-punishing motive was a “substantial or motivating factor” in the adverse action. This is harder than the objective reasonableness standard used for excessive force or false arrest because you need to get inside the officer’s head.

Circumstantial evidence of intent includes: timing (arrested minutes after criticizing the officer), the officer’s own statements, absence of legitimate justification, departure from normal practice, and evidence that similarly situated people who didn’t engage in protected speech weren’t arrested.

See State of Mind Requirements for how this compares to other § 1983 claims.

The Elements

To prove First Amendment retaliation under § 1983, you must show:

1. You engaged in constitutionally protected activity — speech, recording police, filing complaints, protesting
2. The defendant took adverse action against you — arrest, prosecution, termination, harassment
3. The protected activity was a substantial or motivating factor in the adverse action

The third element — causation — is where most cases are won or lost.

The Nieves Problem

Nieves v. Bartlett, 587 U.S. 391 (2019) made retaliatory arrest claims significantly harder. The Court held that if the officer had probable cause for the arrest, the retaliation claim generally fails — even if the arrest was actually motivated by retaliation.

The narrow exception: you can overcome the probable cause bar if you show that “officers have probable cause to make arrests, but typically exercise their discretion not to do so.” In other words, if people who did the same thing without the protected speech wouldn’t normally be arrested, the claim survives.

This is the “similarly situated” exception, and it’s hard to prove.

Temporal Proximity

One of the strongest pieces of circumstantial evidence for retaliation is timing. If you criticized an officer at 3:00 PM and were arrested at 3:05 PM, the timing alone can support an inference of retaliatory motive.

But timing alone usually isn’t enough at summary judgment — you need additional evidence of retaliatory intent.

Why It Matters

Retaliatory arrest is one of the most common forms of police misconduct. Criticize an officer, get arrested for “disorderly conduct” or “obstruction.” The charge often gets dropped — but the arrest itself was the punishment.

The challenge: proving the officer’s subjective motivation. Body camera footage, the officer’s own words, the timing, and the absence of any legitimate basis for the action are your best tools.

Key Cases

• Nieves v. Bartlett, 587 U.S. 391 (2019) — Probable cause generally defeats retaliatory arrest claims, with narrow exception
• Hartman v. Moore, 547 U.S. 250 (2006) — Retaliatory prosecution requires showing absence of probable cause
• Lozman v. City of Riviera Beach, 585 U.S. 87 (2018) — Official-policy retaliation claims don’t require showing absence of probable cause
• Houston Community College System v. Wilson, 595 U.S. 468 (2022) — Verbal censure by elected body not actionable First Amendment retaliation