Kyrgyzstan Native Makes Supreme Court Debut in Free Speech Case

Anya Bidwell knows what it feels like to fear the government.

Before moving to the US for college in 2004, the Institute for Justice attorney worked for the CNN Student Bureau in Kyrgyzstan and worried, as a budding journalist, that she’d at some point anger officials in the former Soviet republic and be thrown in jail for her reporting.

That’s why, she said, the retaliatory arrest case she’s arguing on behalf of a former Texas city councilwoman in her debut before the US Supreme Court on Wednesday feels so personal.

“I’m very familiar with government overreach and also that kind of attitude that we can just punish our critics,” she said.

Bidwell is representing Sylvia Gonzalez in her fight to sue the mayor, police chief, and a special investigator in Castle Hills after she was allegedly arrested for trying to oust the city manager. Gonzalez, now 77, was charged with a misdemeanor in 2019 for tampering with a government document when the petition she spearheaded was found in her binder after a city council meeting. The charge was later dropped.

“At the heart of the question presented is whether government officials can launder their retaliatory animus through probable cause,” Bidwell said.

Gonzalez is asking the justices to reverse the US Court of Appeals for the Fifth Circuit’s decision to dismiss her suit. Citing the Supreme Court’s 2019 decision in Nieves v. Bartlett, the New Orleans-based appeals court said Gonzalez couldn’t bring her First Amendment claims of retaliatory arrest given that probable cause existed to arrest her.

Because the probable cause standard is very low and crimes are broadly written, Bidwell said government officials will be able to easily pin something on critics if the Fifth Circuit’s decision is allowed to stand.

Civil Rights

Bidwell, 37, came to the US by herself at 16 to study journalism at Hawaii Pacific University, after transferring from a journalism program at the American University in Central Asia. When she ran out of classes to take studying global policy in a graduate program at the University of Texas, she went across the street to the law school, and quickly learned she had been pursuing the wrong profession.

“The common law framework that is set out, the case-based approach, was very attractive to me,” Bidwell said. She joined IJ in 2017 and now leads its Project on Immunity and Accountability from California.

IJ is a libertarian nonprofit public interest law firm that’s had success at the high court in recent years, winning eight out of 10 cases dating back to 2002.

Arif Panju, managing attorney of IJ’s Texas office, said the group has been described as “a merry band of libertarian litigators” that seeks “to vindicate the pillars of a free society” with a focus on holding government officials accountable.

Bidwell’s intrinsic motivation to do meaningful work to protect people’s rights is fueled by her upbringing in Kyrgyzstan and move to the US, Panju said.

“Anya has seen that when you’re in an environment where legal rights aren’t taken seriously, when legal rights are given short shrift and receive no meaningful protection, that the world changes quite quickly for human flourishing there,” he said.

School choice is another focus for IJ. The law firm has won fights recently to expand publicly funded education programs to religious schools.

The Supreme Court ruled in IJ’s favor in Carson v. Makin in 2022 when it said states must include religious groups in taxpayer-funded school choice programs. That decision followed the court’s 2020 ruling in Espinoza v. Department of Revenue when the court said states can’t bar religious schools from state scholarship programs.

IJ is also representing Texas landowners in a second case the firm has pending this term. It’s arguing the property owners have a constitutional right to sue the state for compensation after a highway project flooded their land. The court seemed divided during the January arguments in Devillier v. Texas. A decision is expected by the end of June.

Incentives for Police?

Bidwell’s case is one of two this sitting that will be argued solely by women. Bidwell will face Lisa Blatt, who chairs Williams & Connolly’s Supreme Court and appellate practice and is representing the Castle Hill officials. The other argument with a full female line-up will be March 26, in the fight over access to the abortion drug called mifepristone.

Blatt didn’t respond to a request for comment. In briefs filed to the court, she argued against Bidwell’s claim that probable cause only bars retaliatory-arrest claims when police make “on-the-spot” decisions to arrest someone. The view “defies common sense,” Blatt said.

“Limiting the probable-cause bar to on-the-spot arrests would bizarrely incentivize police to arrest first and think later to avoid litigation,” she said.

But even if the probable cause barrier in Nieves applies to arrests made with warrants, Bidwell argues Gonzalez offered sufficient objective evidence to show people aren’t normally arrested for what she did, and she meets the probable cause exception.

The court’s decision could impact whether the Marion County Record sues a police chief in Kansas for raiding its office last year for alleged retaliation after the paper investigated him. Bidwell said IJ is consulting on that potential case.

A local attorney has a draft of the complaint ready and is waiting to see if the court narrows Nieves, she said.

“He also has to weigh against the statute of limitation and how long he can wait for the decision to come out,” she said.

As for Gonzalez, Bidwell said all she’s just looking for vindication. Gonzalez gave up her council seat and isn’t planning to run again.

“Really it’s for the future people who want to run,” Bidwell said. “She just doesn’t want people to be scared of their government. She was so humiliated and the entire experience was so terrible I think she just wants to be vindicated.”

The case is Gonzalez v. Trevino, U.S., No. 22-1025, arguments 3/20/24.