Disney’s Free Speech Case Highlights Weak Protection for Critics

Recently, something commonplace happened. A judge threw out a federal lawsuit that alleged a government official used his position of power to retaliate against a critic.

Even though the critic argued the official violated the First Amendment by enacting a law specifically designed to harm its business, the judge held that any retaliatory motivation behind the official’s actions didn’t matter because the law the official enacted was constitutional on its face.

This particular story made headlines because of the actors involved: Florida Gov. Ron DeSantis (R) and Walt Disney Parks and Resorts.

But that same plot device has shown up elsewhere despite First Amendment protection of citizens from laws that directly censor their speech. In Newton, Iowa, for example, Noah Petersen was arrested and charged with “disrupting a lawful assembly” when he expressed concerns about the city government.

In East Cleveland, Ohio, after William Fambrough used his truck to broadcast messages for his friend’s mayoral campaign, he received citations and his truck was towed weeks before the election. My public interest law firm, the Institute for Justice, represents Petersen and Fambrough.

Other examples abound. Yet courts have erected a wall of legal doctrines that make it difficult to hold officials accountable. One of those doctrines is qualified immunity.

Created by the US Supreme Court in the 1980s, qualified immunity protects government officials from being sued for violating constitutional rights unless victims can show those rights are “clearly established.” In practice, that means victims must point to a previous judicial decision finding the same conduct in the same circumstances unconstitutional.

Proponents of qualified immunity argue it gives police leeway to make reasonable mistakes—especially in dangerous situations requiring quick thinking—without facing litigation. But courts apply the doctrine to all government officials, even when those officials have time to consider the constitutionality of their actions.

That includes retaliation cases. In a new report published by the Institute for Justice, the authors analyzed the largest-ever collection of qualified immunity cases—more than 5,500 federal appeals over 11 years. First Amendment claims featured in nearly one-in-five appeals.

In most of those appeals, officials were accused of premeditated retaliation against employees or private citizens for protected speech they didn’t like. That is a far cry from the kinds of split-second decisions used to justify qualified immunity. Nevertheless, the data shows that government defendants who claim qualified immunity usually win.

And qualified immunity is just one of the many obstacles standing in the way of accountability. Take Sylvia Gonzalez’s case, for example.

Gonzalez—a 76-year-old grandmother—is yet another victim of retaliation. After she ran for city council in Castle Hills, Texas, her first act in office was to support a petition calling for the removal of the city manager. The city manager’s allies, however, decided to punish Gonzalez for challenging him. Two months later, she was arrested. Her offense? Tampering with a government record—by stealing her own petition. With representation from the Institute for Justice, Gonzalez sued the officials for violating her rights.

The officials tried to claim qualified immunity, but the district court refused. On appeal, the US Court of Appeals for the Fifth Circuit reversed the lower court and ordered Gonzalez’s case dismissed. It used yet another legal doctrine that lets officials off the hook for retaliatory arrests that were technically supported by probable cause—even if that probable cause was manufactured.

The US Supreme Court will hear Gonzalez’s case on March 20. One of the questions the justices will be asked to decide is whether an official can avoid accountability for a retaliatory arrest that is the culmination of a months-long scheme, rather than a split-second decision.

The answer to that question should be no. If the First Amendment means anything, it surely means individuals can criticize the government without fear of retaliation. It shouldn’t matter whether retaliation comes in the form of passing a law or using one as a pretext to arrest a critic.

If we want the First Amendment to be more than just words on a page, government officials who violate it must be held accountable.

The case is Gonzalez v. Trevino, 5th Cir., No. 21-50276, cert granted 10/13/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Caroline Grace Brothers is an attorney at the Institute for Justice in Arlington, Va.

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