Supreme Court seems likely to answer important First Amendment question differently than Judge Ketanji Brown Jackson
The Supreme Court heard oral argument last week in Egbert v. Boule asking whether people whose First Amendment rights have been violated by federal agents can seek monetary damages to remedy the violation even if Congress has never allowed such a case by statute.
Earlier this year, Protect the 1st filed a brief explaining why, in those circumstances, there should be some remedy available. Unfortunately, at oral argument, multiple Justices seemed skeptical about finding such an implied cause of action.
Justice Kagan explained that implied causes of action have been “basically a remedy for Fourth Amendment violations.” Justice Barrett expressed her belief that finding a First Amendment cause of action would be “difficult.” Justice Thomas asked why the Court should find any new cause of action given how the Court has “universally declined” to do so in “recent history.”
Justice Gorsuch followed the same line of reasoning. Justice Alito has never been a friend of causes of action untethered from a statute. Based on how oral argument went, we would guess that the Court will hold that there is no implied First Amendment cause of action.
The more interesting question is this: If Judge Ketanji Brown Jackson—President Biden’s choice to replace Justice Stephen Breyer—had already been confirmed, how would she vote?
Judge Jackson gave an answer to that question nearly ten years ago when she decided Patterson v. United States. That case began after Anthony Patterson was “arrested for using profanity in a public park.” Judge Jackson explained that “where … there is an allegation of retaliatory arrest in the absence of probable cause, the plaintiff has a viable First Amendment claim.” Jackson concluded “that Patterson's First Amendment . . . claim — which alleges that Patterson was arrested without probable cause and ‘solely on account of the content of his speech’ is actionable.” In other words, Jackson answered yes on a question the Supreme Court now seems poised to answer no.
Jackson’s Patterson opinion is just one reason why we are optimistic about Jackson’s historic nomination. The opinion shows that Jackson is willing to protect constitutional rights regardless of whether Congress has given its imprimatur.
While it is unfortunate that the current court seems unwilling to follow that path, Jackson’s voice on the court may well be what is needed to convince justices to expand the concept of implied causes of action in First Amendment claims in the future. We expect that Jackson will be swiftly confirmed and, if the Court gets things wrong when it decides the Egbert case, we hope that a Justice Jackson will be successful at convincing her new colleagues that her Patterson decision was rightly decided.