0:00:00.0 Speaker 1: We'll hear argument next, this morning, case 17-1174, Nieves versus Bartlett.

[music]

0:00:10.3 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, the hosts are talking about Nieves v. Bartlett. This is a case about retaliatory arrest, when a police officer arrests someone because the officer didn't like something the person said. The case originated at an extreme sports event in Alaska in 2014.

0:00:32.1 Speaker 3: They call it Arctic Man and it's one of Alaska's biggest, wildest, and most dangerous parties. Heavy drinking...

0:00:40.1 Speaker 4: You guys want a beer?

0:00:41.4 Speaker 3: High-powered snow machines, and one of the most insane ski races ever imagined.

0:00:48.4 Leon: The incident that sparked the case involved Russell Bartlett, an Arctic Man spectator, intervening when a police officer tried to talk to another attendee. The officer then arrested Bartlett for disorderly conduct. The State of Alaska did not pursue the case, but Bartlett did. He sued the officers involved for false imprisonment and argued that his First Amendment right to free speech had been violated. Bartlett appealed the case all the way up to the Supreme Court, but the court rejected his claim, holding that in general, as long as police have probable cause for your arrest, it doesn't matter that their true intent was to punish your free speech. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:37.4 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have thinned the ranks of our civil rights, like vaccine mandates have thinned the ranks of our nation's police departments.

0:01:47.9 Rhiannon: Oh my god. [chuckle]

0:01:49.1 Peter: I am Peter. And I'm here with Rhiannon.

0:01:52.3 Rhiannon: Hey, Peter. Hello everybody.

0:01:54.0 Peter: Michael, taking the week off because his dog, Hank, is sick.

0:01:58.4 Rhiannon: Yeah.

0:02:00.2 Peter: So send good vibes for Hank, for our buddy Hank.

0:02:02.2 Rhiannon: Yeah, best wishes for Hank.

0:02:05.3 Peter: Today's case is Nieves v. Bartlett. This is a free speech case, but unlike a lot of free speech cases, which are just about the various ways in which ultra-wealthy sociopaths can spend their money to influence public opinion, this is actually about an individual's right to express themselves. In fact, this is about something that, in my view, goes to the very heart of the First Amendment, what's called retaliatory arrest. Retaliatory arrest is the arrest of someone by police in retaliation for saying something the police did not like. In this case, a man, Russell Bartlett, was arrested for disorderly conduct. And I believe they tacked on a resisting arrest there?

0:02:49.5 Rhiannon: That's right.

0:02:51.1 Peter: But what he claims is that the arrest was actually retaliation for his refusal to cooperate with the cops shortly before his arrest and for telling the cops to stop talking to a teenager. In other words, he's claiming that he was exercising his First Amendment rights and that he was arrested for doing so.

0:03:07.0 Rhiannon: Right.

0:03:07.9 Peter: The court in a six to three decision holds that this arrest was not a violation of the Constitution because regardless of the motive, the police had probable cause to believe Mr. Bartlett was violating the law. This case is emblematic of first, how the Roberts Court consistently gives undue credence to the stories told by cops, and second, how little protection is afforded to the free speech rights of ordinary citizens when compared to our oligarchic overlords. So Rhi, let's dive in on the context here.

0:03:41.9 Rhiannon: Yeah, let's set the stage for Mr. Bartlett's retaliatory arrest. Okay, so this actually happened at an event, a festival, I guess you could call it, called Arctic Man. It's a week-long winter sports event that takes place in Paxson, Alaska every year. Arctic Man is sort of known for stuff like snowmobile races and skiing events, there's lots of partying. I read somewhere that it's like Burning Man, but rural Alaska. That's what's going on. [chuckle]

0:04:15.4 Peter: That takes away a significant chunk of what I think Burning Man is sort of about, but okay.

0:04:23.5 Rhiannon: So, in April 2014, Russell Bartlett is attending Arctic Man, when there is an incident with two officers. Their names are Officer Nieves and Officer Weight. So, first thing that happens is that Officer Nieves is telling someone, a couple of festival attendees, to put their keg in their RV. "Move your keg out of the way," something like that. Now, Russell Bartlett calls over to those attendees and tells them, "Don't talk to the police."

0:04:52.6 Peter: Nice.

0:04:53.1 Rhiannon: Now... [chuckle] Classic, we love this guy. Officer Nieves says that Bartlett is clearly intoxicated when he yells over at them. "He's yelling, he's raising his voice," Officer Nieves says and accuses Bartlett of having slurred speech also. Now importantly, Bartlett denies that he was intoxicated at this time, and he says that he wasn't shouting. So Officer Nieves approaches Bartlett, tries to start asking him some questions, and Bartlett, for his part, tells him to fuck off. Not literally, he doesn't say the words, "Fuck you, fuck off," but Bartlett is like, "Go away, I'm not talking to you." So Officer Nieves says that Bartlett yelled at him to leave in an aggressive way, and Officer Nieves does go away. A few minutes later, Bartlett sees...

0:05:43.8 Peter: Yelling works, baby.

0:05:46.8 Rhiannon: Yeah. [chuckle] Tell the police to fuck off more often. A few minutes later though, Bartlett sees another officer, Officer Weight, in the process of questioning a minor, a teenager. Bartlett puts himself between the officer and the child and he tells Officer Weight that he should also fuck off. "Hey dude. Cop, you shouldn't be talking to this kid." So both parties, the officers and Russell Bartlett agree about what happened next. Officer Weight, who was questioning the teenager, pushed Bartlett and Officer Nieves starts to put Bartlett under arrest. Both parties also agree that Bartlett was slow to respond to Officer Nieves' orders, you know, "Put your hands behind your back, roll over," whatever he was telling him. Now, the cop says that Bartlett here is resisting arrest. Bartlett argues afterwards that he was just moving slowly because of a lingering back injury and that he wasn't ever disobeying orders or aggressive or belligerent or even drunk. So Officer Nieves gets handcuffs on Bartlett and he tells him, "I bet you wish you would have talked to me now."

0:06:57.3 Rhiannon: And what the officers say is that Bartlett is being arrested for disorderly conduct and for resisting arrest. Now those charges are eventually dismissed, but Bartlett files a lawsuit against the police officers saying that he was arrested in retaliation for exercising his First Amendment rights. You can tell an officer to fuck off, you can tell someone they shouldn't talk to the police, and the First Amendment protects you from being retaliated against for engaging in protected speech, of course. My man was just speaking truth to power and the cops had a little pissy fit and they arrested him for it, so that's how we get this case.

0:07:34.5 Peter: Yeah, so let's talk a bit about the law here. They arrest him for disorderly conduct and they throw on a resisting arrest charge, as they are one to do.

0:07:43.3 Rhiannon: Classic.

0:07:44.3 Peter: And Bartlett, of course, says that the real reason for his arrest was that he was exercising his speech rights by refusing to talk to the cops and telling them to leave the teenager alone.

0:07:54.7 Rhiannon: Right.

0:07:55.7 Peter: Everyone agrees, in theory, that arresting someone for exercising their speech rights is a violation of the Constitution.

0:08:03.1 Rhiannon: Yes.

0:08:03.7 Peter: But what the cops said is that as long as they have probable cause to make an arrest, they should be allowed to do it regardless of their true motive. What Bartlett argues is if you agree with that, you're allowing the cops to arrest people for their speech as long as they can claim it was for something else. And the court, in a decision with the majority written by John Roberts, agrees with the cops and holds that generally speaking, as long as there is another reason for the arrest, it will be constitutional. So let's walk through the reasoning here. Roberts starts talking about what he calls the causal complexities of retaliatory arrest cases. In essence, he's saying that claims that an officer's true motivation for an arrest was retaliation for speech are easy to make and hard to prove.

0:08:57.8 Peter: I think at least conceptually, that is correct, it's difficult to prove that an officer's true motivation for an arrest was to retaliate against someone for their speech. The real question is how the law should deal with that difficulty.

0:09:10.3 Rhiannon: Right, yeah.

0:09:11.1 Peter: And what the majority does is basically say, "Well, because it's difficult to prove what the officer was really thinking, we shouldn't bother." Right. And Roberts does a bunch of hand-wringing about how if you allow too many of these lawsuits to proceed, it would impose on officers a, quote, "overwhelming litigation risk" unquote, where a stray comment by the officer could envelop them in years of litigation.

0:09:35.8 Rhiannon: Oh, no. [chuckle]

0:09:37.0 Peter: Said without irony.

0:09:38.5 Rhiannon: Yeah, yeah.

0:09:39.6 Peter: As if like the cop's speech rights are the ones at issue here and not the person being arrested. Pretty brazen stuff right off the bat here from Roberts. According to him, this would cause, quote, "undue apprehension" unquote, in officers, that would make it hard for them to do their jobs.

0:09:58.4 Rhiannon: Yeah, yeah. So I kinda wanna engage with this reasoning in the opinion maybe a little bit more closely than we usually do. Let's just break it down a little bit, before we get to the part of the episode where we're talking about how the Supreme Court sucks broadly, and why I'm tired of living in this fascist police state, etcetera, etcetera. So let's talk about this probable cause standard. Again, Roberts is saying in the majority here that if an officer has probable cause to arrest somebody, then a claim of retaliatory arrest cannot stand, right? So big, major red flag, big problem here is that probable cause is too easy a standard for cops to meet. Within the Fourth Amendment regime created by the Supreme Court, it is way too easy to find a probable cause pretext for arrest for someone that an officer might want to arrest for illegal reasons. It's too easy a cover up basically.

0:10:57.9 Rhiannon: So one reason why that is, is that our criminal laws and ordinances criminalize way too much behavior. So much conduct that is really unremarkable, human activity is illegal under criminal laws across the country. Crossing the street while reading a text message, playing loud music, standing in front of your house drinking a beer, all of this activity, technically, under criminal statutes is illegal. And so police have all of these laws at their power, at their fingertips to use to justify an arrest of someone, and oftentimes they can do that after the police themselves initiate a sort of hostile contact with an individual. They can tack on charges that they find probable cause for after they themselves initiate a hostile interaction with somebody. So because probable cause is so easy to find, stacking charges like this is extremely common. Like I can't tell you what it's like or how common it is in my day-to-day experience to be watching, say, body cam footage or dash cam footage of an arrest of my client and you hear officers talking to each other about what other charges they can tack on to someone that they've already arrested.

0:12:18.3 Rhiannon: You arrest someone for public intoxication, you hear the cop saying, "Well, we can also pop him with a disorderly conduct," because probable cause is so easy to find. Resisting arrest is exactly one of these charges. Bartlett himself in this case experiences that, where he's being arrested for disorderly conduct, but then because of the nature of the sort of hostile interaction between him and cops, cops also have probable cause for resisting arrest, right? Assault on an officer, also commonly a charge, a more serious charge that's tacked on in addition to some other charge that is supposedly the motivation for a cop to initiate an interaction with somebody.

0:13:00.1 Rhiannon: So probable cause being the standard here, if an officer has a legitimate probable cause for an offense, then it can't be said that the officer is arresting you in retaliation. That's one major, major problem of this decision.

0:13:15.3 Peter: Right.

0:13:15.8 Rhiannon: Another is that John Roberts does away with inquiry into an officer's subjective intent. Like you said, Peter, Roberts says that, "This is just too complicated, inquiring into every case to see what one individual officer thought or meant or intended with their arrest. That's too dangerous and too complicated." It's problematic, I think, when you're analyzing whether somebody is arrested in retaliation, because somebody's subjective intent is highly relevant to the question of whether they're acting in retaliation, right?

0:13:53.3 Peter: Yeah, it's the core of the claim, the idea that what are you intending? That is the heart of a retaliation claim.

0:14:00.5 Rhiannon: Exactly.

0:14:01.1 Peter: Which is why this is so bizarre. And also a quick note, Roberts says, "Well, the statements and motivation of officers are irrelevant because they're not objective." But how are officers' statements not objective evidence?

0:14:15.8 Rhiannon: Right.

0:14:17.2 Peter: That seems like pretty good evidence to me, and he just waves it off. So to be clear, Roberts is saying that even if an officer makes a comment that expressly admits that he is retaliating against you for your speech by arresting you, that's not valid evidence, to him, that your constitutional rights are violated.

0:14:37.5 Rhiannon: Right, right. The hand-wringing over, how are we gonna figure this out? It's just too complicated to try and look into an individual officer's intent, that's really... It's belied by literally all of criminal law. Literally, every criminal statute in the country has some requisite mens rea or personal intent that must be proven in order to find someone guilty of a crime. So quick example, premeditated murder is treated more harshly in our system than say like a negligent or an accidental homicide, because literally the state of mind of the actor is relevant in the law, right? And when we say that prosecutors have to prove a case beyond a reasonable doubt, they are also having to prove a criminal defendant's state of mind when they acted in a way that's allegedly criminal. So my point here is that Roberts, the majority here, they're acting like inquiring into the state of mind, into the motivation, into the individual intent of an arresting officer is just absolutely impossible. But my response is that, you're either saying this is impossible, so like all of criminal law, any areas of law that take into account someone's state of mind like an intentional tort, you're either saying all of that is impossible, or you're saying that police officers are a special kind of people whose intent is not relevant to their illegal activity.

0:16:05.5 Peter: Right.

0:16:06.4 Rhiannon: Both of those positions are nuts, but one of them is what the Supreme Court believes.

0:16:10.7 Peter: Yeah. I mean, the way in which Roberts just discards the cop's statement here, his alleged statement is wild. What he says is no joke, "Well, we can't let an officer get in trouble for a stray comment." But why is it so crazy to infer intent or state of mind from someone's statements? I mean, I would say that someone's statements at the time that they are doing something is actually a great place to start when you're trying to figure out their state of mind and what their intent really is.

0:16:41.9 Rhiannon: Absolutely, yeah.

0:16:43.6 Peter: The officer's free speech is not an issue here. It fucking blows my mind.

0:16:49.0 Rhiannon: Right, and the officer when arresting Mr. Bartlett says, "I bet you regret not talking to me now." So literally saying, "I am arresting you because you didn't talk to me earlier."

0:17:00.8 Peter: Yeah. Everyone agrees that cops have very wide discretion in making arrests, right? You were just hinting at this with your discussion of probable cause. They can arrest people for a wide array of activity if they want to, and they have to make decisions about whether or not they want to for any given reason. And the court has historically used that discretion to justify itself, meaning the court will say, "Well, police have broad discretion here," as a rationale for staying out of it. But that's the opposite of what the court should be doing, because cops have such wide discretion in arrests, it's important that the scope of that discretion be closely regulated.

0:17:39.7 Rhiannon: Exactly.

0:17:40.3 Peter: And you just don't see the court doing that here. We would be remiss if we did not mention that Roberts carves out one exception to this rule.

0:17:48.0 Rhiannon: Oh, thank you. We need an exception here, Roberts. What do you come up with?

0:17:52.8 Peter: He says that, "If you can show that there are other people around who are engaging in the same conduct as you, but were not arrested, that could be used as evidence that the real reason you were targeted was your speech." What we call in the law similarly situated people, right?

0:18:09.0 Rhiannon: Sure. Yeah.

0:18:09.2 Peter: So basically, he's saying, "Look, if there's really good evidence that the officer was trying to violate your rights, then fine." But for no particular reason, he limits the evidence allowed to one very specific type that is very difficult to prove. He rules out all sorts of basic evidence, including, like we mentioned, the officer's own statements and of course actual video, which is a huge part of a case against an officer these days. So if an officer arrests you in retaliation for your speech, but there's no one else in a comparable situation, you're fucked, right? According to John Roberts.

0:18:41.4 Rhiannon: Yeah, yeah, so this is called the atypical arrest exception, and it basically stands for the proposition that you should be able to prove that you were treated unfairly, because even though you were technically violating the law, you can show that the cops are not conducting these arrests equitably, right?

0:19:00.9 Peter: Right.

0:19:01.0 Rhiannon: You are showing that your arrest was actually a typical, and to Roberts, this is an exception, an area in which it shows that even though they might have had probable cause to arrest you for this, the arrest itself was so different from the norm, other people aren't arrested for the same thing that their probable cause doesn't hold up as a defense to your retaliatory arrest claim, right? The idea, like Peter said, is that if you really are being arrested in retaliation for your speech and the officer has probable cause for something else that would otherwise justify the arrest, you can still demonstrate that you were being arrested in retaliation, if you can prove that other similarly situated individuals were not arrested for the same conduct. So Roberts gets a little cheeky, gets a little clever and uses an example to illustrate what he thinks is this really important exception. He uses the example of jaywalking.

0:19:54.2 Rhiannon: He says, "Jaywalking is super common, happens all the time at thousands or millions of intersections and roadways across the country every single day, but in the vast majority of cases, people don't actually get arrested for jaywalking." So Roberts says, like if there's someone who has been, for example, vocally complaining about the police and organizing protests, and then they're arrested for jaywalking, that person probably still has a retaliatory arrest claim because other similarly situated individuals in that community are not arrested for that same conduct.

0:20:29.0 Peter: Right, right.

0:20:29.8 Rhiannon: Okay, though, this sucks. [laughter] This is an unusable exception and it's an impossible burden, okay? So first off, think of how difficult it is to prove a negative in these kinds of situations. Okay, like I can show that I was arrested for jaywalking, but how can I show that other people jaywalked and were not arrested. How do I prove that in court? Roberts is just casually kind of throwing out his little jaywalking example, but there's no data there. He doesn't use any stats or anything like that. Someone making this argument, "I was arrested for jaywalking and other people were not," has to prove it. They have to show something that supports that assertion, and that's gonna be pretty near impossible for anybody.

0:21:17.0 Rhiannon: Like does your police department publish data on the people who do jaywalking but then are not arrested? No. [laughter] It's very difficult to prove that that is happening. Second, this exception that Roberts lays out as being the answer here to protect a true retaliatory arrest claim, like this idea that if you were really arrested in retaliation for your speech, then whatever thing the police wrote down as the reason you were arrested would just be really wacky and unheard of, it would be atypical. That doesn't adequately contend with the reality of discriminatory policing. We know, for example, that Black people are arrested for things like jaywalking at much higher rates than White people. So, is a Black person arrested for jaywalking? Atypically arrested? Right?

0:22:11.2 Peter: Right.

0:22:11.7 Rhiannon: Who are the similarly situated people that are supposed to be the comparators here? We know that police departments in municipalities treat their residents differently on the basis of race and economic status. We know that in some communities, arrests for minor crimes are extremely common. So for many people, the people who are most likely to be harassed by police, the atypical arrest exception isn't usable. They can't prove that being arrested for jaywalking or resisting arrest or having a barbecue in your front yard or walking down the street, they can't prove that those arrests are atypical because they're happening all the time in their communities.

0:22:49.2 Peter: Right, the exception is a way for John Roberts to say like, "Look, I'm not doing away with retaliatory arrest claims entirely." Right?

0:22:55.7 Rhiannon: That's right. Yeah, yeah.

0:22:56.9 Peter: "Look, I created this one exception that shows that I really care about this stuff." But again, it's impossible to believe that he takes retaliatory arrests seriously, when he's literally rolling out video evidence of a cop saying... There wasn't video evidence in this case, we should say, but if there was video evidence of a cop saying, "This was my motive. It was actually to retaliate against you for your First Amendment speech." That wouldn't be enough evidence for John Roberts, and that's fucking nuts and just... I think it really puts the lie to his motives here.

0:23:26.3 Rhiannon: Yeah.

0:23:26.6 Peter: And I think that should bring us to the types of situations that are not technically protected by this opinion, because I think if you start to just concoct them in your mind, it really becomes absurd pretty quickly.

0:23:38.8 Rhiannon: Right.

0:23:39.2 Peter: So we each thought of one. I'm gonna let you go first.

0:23:42.8 Rhiannon: [chuckle] Yeah, Yeah. Yeah, we had a little bit of fun with this, but yeah, to just highlight what the standard looks like in real life, that if a cop has some claim at legitimate probable cause of some criminal activity, then you can't proceed with your retaliatory arrest claim. This is what that can look like. So, say you attend a police protest and when you leave, you're followed by the police in your car for 20 minutes until they can pull you over for a traffic violation. So let's just say, for example, that you didn't turn your blinker on 100 yards before your turn or whatever the law says. You're pulled over, the police officer comes up to the window, he says why he pulled you over, and then he says, "I think you need to be taught a lesson about attending protests." So even though this traffic violation is a fine-only offense, meaning your punishment for not signaling your turn at the correct distance, could be something like $75, the police officer arrests you for it.

0:24:40.9 Peter: Is that legal?

0:24:42.7 Rhiannon: It sure is. The Supreme Court in another case called Atwater has said that arrests, even for fine-only offenses are permissible, so nothing to be done there. And so, then think about all of the things that happen after that. Your car is taken to impound, you're taken down to central booking, you have to take off all of your clothes in front of people, you have to be searched. Whatever possessions you have on you, in your pockets, have to be turned into the police, including your identifying information. They take your mug shot, you sit in a holding cell with other people until you get a bond set and maybe you're released in eight or 10 hours. This whole situation basically takes the rest of your day or you spend the night in holding. All good, according to this case. There's no retaliation there. This case says that that arrest is not a violation of your First Amendment rights, it is not a violation of your right to have attended that police protest, and even though the officer said, "I think you need to be taught a lesson about going to these protests."

0:25:44.3 Peter: Right.

0:25:44.8 Rhiannon: You have an example, Peter?

0:25:45.9 Peter: I have an example.

0:25:46.7 Rhiannon: [chuckle] What did you come up with?

0:25:48.8 Peter: Okay. So, a cop sees you driving your 2009 Honda Accord with a Bernie bumper sticker, right? He doesn't like that because he recently saw a Newsmax piece about what's happening in Venezuela.

[laughter]

0:26:01.1 Peter: So he follows you until you commit a minor traffic violation. He talks to you and he claims to smell marijuana, although he's lying. He calls for a canine unit and makes you wait for it to arrive.

0:26:14.1 Rhiannon: Yup, all legal.

0:26:15.1 Peter: That takes about half an hour. Finally arrives, when it does, the dog smells drugs, but not marijuana. The cops search your car and find a baggie of cocaine 'cause you're cool and you go to parties sometimes.

[chuckle]

0:26:28.3 Peter: They cuff you and haul you to jail. The cop says, "Bet you regret that Bernie sticker now, you commie piece of shit."

[chuckle]

0:26:34.8 Peter: And you're like, "What?" And then he says, "That's why I'm arresting you because of that sticker. Everything I did after seeing that sticker was a pre-textual effort to punish you for exercising your constitutional right to free speech."

[chuckle]

0:26:48.3 Peter: And then he does sort of a maniacal laugh. Per this case, I swear to God, the situation I just described is not a violation of your Constitutional rights.

0:26:58.2 Rhiannon: That's right. It's absurd. But that is correct, right? "That is not a violation," John Roberts says, of your First Amendment rights.

0:27:07.2 Peter: Yeah, so we should talk about the different dissents and concurrences here. This is six to three, but it's a weird six to three. And very similar to our last case, adoptive couple v. Baby girl, it's one of those cases where there are a bunch of awkward concurrences and dissents, and that sort of signals how shitty the reasoning of the majority is.

0:27:28.0 Rhiannon: Yeah, yeah.

0:27:28.8 Peter: So Roberts writes this majority like we said, and he's joined by Alito and Kavanaugh and Thomas and Breyer and Kagan. Thomas writes a concurrence where he agrees with the whole thing, except he doesn't even think that vague exception that John Roberts added in there should exist, he thinks there should be no exceptions. You gotta love him, I mean this... There's a real intellectual honesty there. Gorsuch does a concurrence/dissent where he basically says that he thinks the exception should be read to be a little bit broader. Ginsburg does a concurrence/dissent where she says, "In this particular case, I agree that this guy's rights weren't violated but I don't like the rule that the majority came up with." And then there is a lone dissent on all the merits, and that is Sotomayor.

0:28:20.4 Rhiannon: God bless her...

0:28:20.7 Peter: I know.

0:28:21.8 Rhiannon: She is out here grinding.

0:28:23.0 Peter: Yeah, she is, she is I mean we were talking about this in Prep, and I think it's sort of notable that she seems to be doing the left version of what Clarence Thomas was doing over the past couple of decades. She's staking out the left position and saying, "Here's where I stand", right? She's not doing the sort of consensus building that people think Kagan is doing and Breyer occasionally does. She's basically saying, "This is the line I am drawing, and you can use it as a reference point for future opinions, and you can use it as just an articulation of what I believe the correct position is." She's also had done it in like death penalty cases and things like that, and it does... It reminds me of Thomas. It reminds me of what Thomas did for years, where people were like, well, he's sort of a quack. And he is, but after enough time, the exposure of lawyers and law students to those dissents and concurrences and whatever, it has an impact, right? There's a real material impact there, and I think it's important and good, I think she's not just better on the merits, but I think that this strategy is valuable.

0:29:30.0 Rhiannon: Yeah, I think that's right. And for their part, the other three ostensible liberals on the court at this time, Ginsburg, Kagan and Breyer, I don't think there's a lot more to be said that we haven't already said on the podcast about how the liberal justices and their kind of milk toast liberalism hurts people in a lot of cases. But yeah, just wanna highlight that a lot of times when you are talking about police power, when police power and police conduct is in front of the Supreme Court, it is almost always a time to be disappointed by the supposed liberals up there.

0:30:07.1 Peter: Yeah. And even Ginsburg, who writes a largely reasonable decision, she says, "Well, I think he should probably just lose this case," but why? Shouldn't it go to a jury whether or not the cop actually made that statement. That was basically an express admission that he wants to retaliate against Bartlett, it doesn't make sense to me that... It's not like her little concurrence/dissent did anything, it didn't move anyone over, so I don't see why she wouldn't just join Sotomayor.

0:30:33.7 Rhiannon: I think that's right.

0:30:34.4 Peter: I mean, of course I do, she's sort of just a little bit boot-licky at times. But it's disappointing coming from someone like her whose right ninety-five times out of a hundred. So this case continues the Roberts Court trend of protecting abstract notions of speech, like political expenditures, which functionally apply only to the ultra wealthy while caring very little about direct and material violations of speech rights that impact average people. And you know what could be a more visceral example of a violation of free speech than a cop, an agent of the state, hearing someone saying something he doesn't like, and then manufacturing an excuse to arrest him?

0:31:12.2 Rhiannon: Yeah, Yeah.

0:31:12.6 Peter: Right, it's just a clear and direct breach of your First Amendment rights. And yet the court refuses to impose any meaningful obligations on the state to avoid it, and instead the court focused as much of its analysis on the burden faced by cops. But as we've mentioned before on the podcast, the entire point of constitutional rights is that they impose burdens and obligations on the state. That's purportedly why the document exists to protect people against the imposition of the government. Why it is exactly that an officer getting embroiled in some litigation is considered worse than a citizen being punished for their speech is not explained in the opinion at all? It's just asserted as if it's fact. But it's a ridiculous thing to believe. If you are arrested in retaliation for your speech, you could easily face months or years in prison, if a cop is accused of violating your rights, he gets a tax payer-funded lawyer. He's probably entitled to qualified immunity, so he will never face any personal, let alone, criminal liability. So when Roberts says he's concerned about quote "overwhelming litigation risks for cops", what he's actually referring to is like two official statements in a deposition.

0:32:20.7 Rhiannon: That's right, yeah. Yeah, go meet with IA this afternoon.

0:32:24.8 Peter: Yeah. Is that really a burden, so great that we need to be ignoring constitutional violations?

0:32:29.0 Rhiannon: Yeah, yeah, I think there's something... I don't have this fully articulated yet, but there's something just so grading about this kind of fawning protection of the speech of officers, when at the same time, conservatives are obsessed with the supposed attack of cancel culture. Right? [laughter]

0:32:51.6 Peter: Yeah.

0:32:52.8 Rhiannon: You know. And when the matter before the court, right here, is a citizen, somebody using their First Amendment rights to say what they need to say to the cops, and instead of seeing that as clearly a violation of your First Amendment rights, that you would be arrested for doing so. They're flipping everything upside down and making it about the risk to officers with this kind of litigation. It just strikes me as particularly disingenuous and just really frustrating.

0:33:24.9 Peter: Yeah, there's a marked difference between the propaganda of cops, like the way that cops are presented to the public and the reality of cops. Police are held out as not just a public service, but a uniquely important one, full of brave and well-meaning individuals.

0:33:42.8 Rhiannon: Heroes, yeah.

0:33:43.7 Peter: And the irony is that that perception perpetuates a sociopolitical deference toward police that has allowed them to be violent and adversarial toward the public without consequence. You see this reflected in conservative jurisprudence on cops generally, where they're treated as if they are always acting in good faith. We discussed in our Terry v. Ohio episode way back in the day.

0:34:05.8 Rhiannon: Throwback, yeah.

0:34:06.5 Peter: Courts have made it so that the risk of an encounter with the police is borne by the citizen, rather than the ostensible public servant. The cop can react quickly and hyper-aggressively because of any risk that they supposedly perceive, while the citizen cannot make a single mistake, even a slight movement can get you killed if a cop draws their gun on you.

0:34:27.8 Peter: But the cop not only experiences minimal risk in the initial interaction with a person, he also receives every benefit of the doubt from the courts after it occurs. So an example is here, Roberts implies that false accusations against the police would be common, or at least common enough to warrant concern. If we allow these retaliatory arrest cases to move forward too often, everyone would say that they are getting retaliated against for their speech. He says we should be wary of allowing quote, "doubtful accusations of retaliatory arrest to proceed." But that, once again, inverts what the court's inquiry should be about. This case is about whether the cops' arrest of Bartlet was pre-textual. In other words, it's the cops' honesty that's in question, not the person being arrested. And yet Roberts spends no time exploring the prospect of dishonesty from the police and what it might mean for cases like this. That's pretty significant when there are enormous amounts of data suggesting that police are frequently and habitually dishonest in their filings and in their testimony.

0:35:27.4 Rhiannon: Say that... [laughter]

0:35:33.4 Peter: [chuckle] I don't know why that got me. A USA Today investigation from 2019 found that at least 300 prosecutors' offices do not track officers with a history of lying or misconduct in official reports or testimony resulting in many, many thousands of people going to prison based on the testimony of those officers. Maybe the most obvious evidence of police dishonesty these days, though, is anecdotal. It comes from the proliferation of video, of use of video by the public and by body cams, which has resulted in police statements often being very quickly contradicted by actual video.

0:36:09.7 Rhiannon: That's right.

0:36:10.2 Peter: The Minneapolis Police Department's initial statement about George Floyd was that he died from a quote, "medical incident during a police interaction."

0:36:18.1 Rhiannon: That's certainly one way to describe it, I guess.

0:36:21.1 Peter: Yeah, and then a bystander's video goes viral and it's revealed that actually an officer kneeled on his neck for nine minutes while he begged for his life. At the resulting protests, the Buffalo, New York police reported that a 75-year-old man suffered injuries after he tripped and fell during a skirmish involving protesters. Just a few minutes after they made that statement, video emerged showing no skirmish, just an elderly man being charged and pushed over by police. He was in the hospital for a month with brain damage. The New York Times just reported recently an incident where a man named Chris Cordero was pulled over for a routine traffic violation. He was arrested and charged with assaulting a police officer after a cop claimed that Cordero immediately exited his vehicle and headed straight for him, just a full linebacker charge right at him. Nearby doorbell camera showed that that was not even remotely true and the cop had to apologize on television.

0:37:18.8 Rhiannon: Yeah, I think this decision really exemplifies just a total failure on the part of the majority to give a reality check in this situation, in these situations. Retaliatory arrests and abuse by the police is a known problem in American policing. In every city in the country, we already know there are cases of people filming the police and being arrested themselves, beaten, harshly prosecuted. Ramsey Orta, who filmed the murder of his friend Eric Garner at the hands of the NYPD, said that he was harassed daily by police after that incident, harassment that eventually led to unrelated charges being pressed against Mr. Orta, and for which Mr. Orta was sentenced to four years in prison. In 2015, the DOJ reported that suppression of speech by the Ferguson Police Department in Missouri, the police department responsible for the killing of Michael Brown, their suppression of speech quote, "reflects a police culture that relies on the exercise of police power, however unlawful, to stifle unwelcome criticism." If you'll allow me, I'm actually gonna read a section, kind of a longer section from this DOJ report, because I think...

0:38:35.3 Peter: I will allow you.

0:38:38.2 Rhiannon: [laughter] Hold on. Okay, they said that during a peaceful protest at the Ferguson Police Department for the six-month anniversary of Michael Brown's death, quote, "video footage shows that two FPD vehicles abruptly accelerated from the police parking lot into the street. An officer announced, 'Everybody here's going to jail,' causing the protesters to run. Video shows that as one man recorded the police arresting others, he was arrested for the offense of interfering with police action. Officers pushed him to the ground, began handcuffing him and announced, 'Stop resisting or you're gonna get roasted.' It appeared from the video, however, that the man was neither interfering nor resisting. A protester in a wheelchair who was live-streaming the protest was also arrested. It appears that officers' escalation of this incident was unnecessary and in response to derogatory comments written in chalk on the FPD parking lot and on a police vehicle," end quote.

0:39:35.1 Peter: Nice.

[chuckle]

0:39:36.6 Rhiannon: Just in the past six or seven years, the DOJ has made similar findings about the Maricopa County Sheriff's Office, the Baltimore Police Department, the St. Louis Police Department, the New York Police Department and others, right? And setting aside this sort of direct retaliation from officers for protest activity, cops themselves commonly talk about arrests that they make for so-called contempt of cop.

0:40:04.1 Peter: Contempt of cop is sort of colloquial jargon for situations where someone irritates a cop by not being deferential enough or whatever, the terminology people use is contempt of cop.

0:40:16.4 Rhiannon: In fact, there's this publication called Police Magazine, which calls itself the law enforcement magazine and a community for cops, and...

0:40:24.7 Peter: Hey, what should we call a magazine [0:40:26.8] ____ I think a police magazine...

[laughter]

0:40:32.3 Rhiannon: Nailed it. They have a dictionary, like definitions of cop slang, and they define contempt of cop vastly, quote, "The true underlying behavior of disrespect toward an officer leading to an expensive ticket or arrest for an offense that actually is a law violation," end quote. So the same DOJ report about the Ferguson PD found that, quote, "Officers frequently make enforcement decisions based on what subjects say or how they say it, just as officers reflexively resort to arrest immediately upon non-compliance with their orders, whether lawful or not, they are quick to over-react to challenges and verbal slights. These incidents are propelled by officers' belief that arrest is an appropriate response to disrespect."

0:41:23.0 Rhiannon: So just bringing it home that nationwide, the concept of contempt of cop, officers arresting people in retaliation, not only for First Amendment-protected activity, like attending a protest, but also because a subject just says something that they don't like, that they're offended by, that hurts their feelings, not only is this widely known that this happens all of the time across the country, the DOJ is reporting on it, cops talk about it themselves, right?

0:41:56.6 Peter: Right.

0:41:57.2 Rhiannon: They're up front, they don't even try to hide it, they call it contempt of cop. And so it's just such a massive failure on the part of the Supreme Court, here on the justices, like I said, to contend with that reality.

0:42:09.3 Peter: Yeah. One of the hallmarks of authoritarian regimes in the American cultural mind is the idea that in those regimes, wrong think is punished.

0:42:19.9 Rhiannon: Yeah, yeah.

0:42:20.6 Peter: You say or believe the wrong things, you're whisked away to prison or disappeared.

0:42:25.3 Rhiannon: Yeah.

0:42:25.6 Peter: What's more of like an Orwellian warning than a useful description of how speech rights are typically eroded, especially in western countries, meaning that it's somewhat rare for the expression of political opinions, for example, to be flat out illegal.

0:42:40.5 Rhiannon: Yeah.

0:42:41.2 Peter: What's more common is the implicit or explicit endorsement of the use of pre-textual means to suppress disfavored speech.

0:42:48.7 Rhiannon: Yeah.

0:42:48.9 Peter: You're not arrested for saying something, you're arrested for disorderly conduct or pulled over for a broken tail light or whatever, because a police officer didn't like what you had to say and looked for an excuse to punish you for it.

0:43:00.4 Rhiannon: Yeah.

0:43:00.7 Peter: If you limit your conception of what a violation of free speech looks like to the scary Orwellian archetype, you might never actually realize your speech rights are under attack.

0:43:11.3 Rhiannon: Yeah, I think that's a really good point, Peter. I hadn't read this case before preparing for this episode, but while reading it and while prepping, I couldn't stop thinking about Sandra Bland.

0:43:21.2 Peter: Yeah.

0:43:21.7 Rhiannon: Sandra Bland's case fits really squarely within this concept of the contempt of cop cases that we're talking about here. Listeners, of course, will remember that back in 2015, Sandra Bland was arrested in Waller County, Texas after a pre-textual traffic stop. This was a horrific arrest captured on dash cam and by bystander witness video. That state trooper who pulled her over followed her until he could pull her over for a traffic stop, he accelerated on the back of her car, it caused Sandra Bland to switch lanes because she thought that he was answering an emergency call, at which point, the trooper pulled her over for failure to signal lane change. And at the beginning of that interaction, the officer wrote up a warning for the traffic violation, but then he gets angry over the course of his conversation with Ms. Bland. He asked her to put out her cigarette, she asked, "Why do I have to do that?" And the officer orders her to get out of the car...

0:44:21.4 Peter: Out of respect.

0:44:23.1 Rhiannon: Right, right, right. You can tell from the tone and tenor of that interaction watching the video that that's exactly what it is, right? He just feels disrespected. Ms. Bland refuses to get out of the car and the officer gets angrier and angrier, he's screaming at her, he tells her she's under arrest, he tries to pull her out of the car physically, and then he threatens her with a taser, right? He screams at her, "I will light you up."

0:44:47.3 Peter: Right.

0:44:47.6 Rhiannon: And when she gets out of the car, he wrestles her to the ground, he hits her head into the ground, she screams that she has epilepsy, he replies "Good," he arrests her and takes her to jail, and Sandra Bland is found dead at the county jail three days later.

0:45:04.5 Peter: Right.

0:45:04.9 Rhiannon: Just looking back in all of that chaos, in all of the violence in just those few minutes in which she's arrested, you go back to think, "What was she arrested for, right?" And actually, what that cop charged her with was assaulting a police officer, allegedly, because she kicked him in that interaction after he forced her to get out of her car, forced her onto the ground and was beating her. Under this case, this Supreme Court case, Nieves v. Bartlett, Sandra Bland likely would have no claim that she was arrested in retaliation, arrested because she offended the toddler sensibilities of a roided-out racist freak in a uniform, right? The only reason we know about it is because of the tragic ending...

0:45:53.0 Peter: Right.

0:45:53.2 Rhiannon: Because she died and her family fought to have dash cam and other evidence released to the public, but it's such a clear example of how an authoritarian police regime operates on a daily basis. How many people have been arrested or are arrested routinely for assaulting an officer after the officer is the one who gets pissed and gets physically violent in the first place. How many people arrested for disorderly conduct because they showed up to a protest? It's routine and ubiquitous and it's a foundational feature of American policing, right? These retaliatory arrests. And these are arrests being used as social control, as just a sort of bold exercise of the power of the state on people and on communities. And here I think it's really sad that the Supreme Court does not have a thing to say about that.

0:46:44.7 Peter: Yeah. Yeah, absolutely. There's such a bizarre way in which... If you asked anyone from a school child up to a full well-educated adult, what's the best part of America...

0:47:01.1 Rhiannon: Right.

0:47:01.0 Peter: Freedom of speech, right? Freedom of speech.

0:47:01.1 Rhiannon: Yeah, yeah.

0:47:02.7 Peter: And I think it's like maybe a little bit contrived, but depends who you are and who you're talking to, right?

0:47:08.9 Rhiannon: Yeah.

0:47:09.5 Peter: And what conservatives have done is define speech as something that exists in certain narrow categories. Nonsensical categories, right?

0:47:19.4 Rhiannon: Yeah.

0:47:19.8 Peter: From what you see in Citizens United with independent expenditures to the more culture war side, where you see people saying, "Well, I'm being blocked on Twitter," or whatever the fuck.

0:47:32.0 Rhiannon: Right, yeah, yeah, yeah. Or de-platformed on social media or something. Yeah.

0:47:35.8 Peter: But in all the visceral ways in which the government can suppress your speech, conservatives have very little concern.

0:47:42.4 Rhiannon: That's right.

0:47:43.9 S8: Because those are frequently ways in which the social hierarchy reinforces itself. We talked about Morse v. Frederick earlier this year, the case where a student held up a silly sign at a school adjacent event and was suspended for it. And Roberts was like, "Yeah, well."

0:48:01.7 Rhiannon: Yeah.

0:48:01.8 Peter: "You can't hold up a sign about bongs or whatever at school... "

[laughter]

0:48:06.1 Peter: And then you have this where Roberts just shows no concern for a citizen getting arrested, almost certainly for just getting little mouthy with cops.

0:48:14.7 Rhiannon: Right.

0:48:15.2 Peter: Which by the way, is one of life's greatest joys, and I, as a White man, have been able to occasionally indulge, and all I wish for my POC brothers and sisters and non-binary friends, is that you could engage yourself without fear of retaliation, 'cause it is... It is the shit.

[laughter]

0:48:40.5 Peter: So, we're at a moment in history, where the forces of social hierarchy are aligning behind cops.

0:48:51.3 Rhiannon: Yeah.

0:48:51.6 Peter: The most liberal political bodies in this country are probably major cities, New York, Chicago, LA, San Francisco. They have done absolutely nothing to stand up to their respective police forces in the light of significant public pressure. Probably because police unions have secured an enormous amount of political control.

0:49:16.4 Rhiannon: Right.

0:49:17.1 Peter: Someone like Bill de Blasio probably wishes he could have reigned in NYPD a bit more than he did, but they run this fucking city more than he does. And that's like the bottom line.

0:49:28.8 Rhiannon: Right.

0:49:28.9 Peter: Courts are an important backstop where other branches of government have failed to reign cops in. And what they can do is provide a paradigmatic shift in how the law treats police and how the law treats what they say and do, the deference that police are given in courts.

0:49:48.6 Rhiannon: Right.

0:49:48.6 Peter: And if the Supreme Court did it well, if they stepped in and defended First Amendment rights here, defended Fourth Amendment rights, in other cases, it would not matter that police unions have secured such a level of political control. Their control would be slowly eroded by the fact of their violence, by the fact that they assert themselves over the community in such an aggressive unconstitutional way. And that's like the real tragedy of cases like this, is that there is a real hope for police reform. It doesn't come from the fucking Lori Lightfoot, it comes from the courts. And there is such an easy vessel in the Constitution for limiting the power of police, and conservatives have ensured that it just does not have.

0:50:36.8 Rhiannon: Yeah.

0:50:37.7 Peter: That's I think why this case sucks so fucking much and why it's so symptomatic of a broader disease with how this court in particular, but courts generally treat police.

0:50:49.3 Rhiannon: That's really well put, Peter. What do we think?

0:50:54.4 Peter: Alright.

0:50:55.3 Rhiannon: I have to tell you guys a story, which is sort of police and speech related, sort of adjacent. Okay, so I regularly attend this bar trivia, and last week they did a special... There's always like a visual round of trivia where there's like picture clues or whatever, and you're having to guess something, but they were switching it up last week and they did a reverse visual round where the trivia teams actually had to submit a drawing to be judged, and then you would get points based on your ranking. The top picture would get the most points all the way down to the last one.

0:51:34.6 Rhiannon: Okay. So you could choose your category for the drawing that you were gonna submit. So there were, I think, four categories. You could draw a picture of a ferocious dinosaur, a landscape, any abstract piece, or fourth category, a cute little piggy. That's how the category was called, cute little piggy. Okay. So, we also, having been to this trivia many times before, we know the guy who does it, it's an independent trivia guy, whatever, and kinda know him to have some left-leaning sensibilities. So we think, I get the possibility to draw a cute little piggy, automatically Rhiannon is thinking a cop, right?

0:52:15.0 Peter: Right.

0:52:16.5 Rhiannon: And then, [chuckle] and we know that the guy who runs it, the guy who's gonna be looking at the drawings is probably sympathetic to this kind of joke, open to this kind of comedy, so we're like, Okay.

0:52:28.2 Peter: So you're ready to win this...

0:52:29.8 Rhiannon: Oh yeah, I'm like, okay, we're gonna do a cute little piggy and it's gonna be a cop. We're gonna draw a pig, and it's gonna be an officer and like let's do... Okay, since it has to be like cute or whatever, let's do like a pig like, with a little sheriff's badge and he's like stomping out like a teddy bear or something like that, right. [chuckle]] We submit, everybody submits. There's 15 teams. We're like, "Oh, we got this in the bag, he's gonna love us, he loves our team names, this is gonna be great." Okay, everybody submits their picture and he announces out of the blue that the judge for the drawings is his seven-year-old son. [laughter] A fucking second grader is gonna look at... Is gonna look at this drawing that we put together of... Very clearly a cop as a pig, animal stomping to death a teddy bear.

0:53:30.8 Peter: How did you place?

0:53:32.9 Rhiannon: [laughter] We did not do... We did not do so well.

0:53:35.6 Peter: He didn't get it.

0:53:37.7 Rhiannon: [laughter] We didn't, yeah. The kid...

0:53:38.6 Peter: He didn't get it.

0:53:39.6 Rhiannon: The kid didn't get it, he's not on my comedy level.

0:53:42.6 Peter: No, he's a moron.

0:53:44.2 Rhiannon: [laughter] Didn't land, didn't land.

0:53:47.3 Peter: Bummer.

[vocalization]

[music]

0:53:51.5 Peter: Next week, we are doing a term preview, which we usually wouldn't do, except we got Elie Mystal over at The Nation, who's gonna hop on and help us because I don't read what the cases are gonna be. So I need someone to walk me through it.

0:54:12.3 Rhiannon: Yeah.

0:54:12.9 Peter: Before we wrap up here, we've started running the occasional ad for mission-driven organizations, so you work somewhere that you think aligns with our values a bit, and wanna advertise on our show? Have your people contact my people. Fivefourpod@gmail.com. Follow us on Twitter @fivefourpod and join our Patreon. Patreon.com/fivefourpod, all spelled out for bonus episodes.

0:54:41.7 Rhiannon: Yeah.

0:54:41.8 Peter: Access to our Slack...

0:54:43.2 Rhiannon: Yeah.

0:54:43.7 Peter: Merch discounts.

0:54:44.9 Rhiannon: Yeah.

0:54:45.5 Peter: Zoom events.

0:54:46.3 Rhiannon: Yeah.

0:54:47.2 Peter: It goes on and on and on.

0:54:48.6 Rhiannon: Me saying yeah. [laughter]

0:54:49.8 Peter: But mostly those things. We will see you next week.

0:54:53.2 Rhiannon: Yeah.