# First Amendment Question (especially for you lawyers out there) **URL:** \ **Category:** Factual Questions\ **Created:** [February 4, 2006, 11:39pm UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045 "2006-02-04T23:39:06Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 4, 2006, 11:39pm UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/1 "2006-02-04T23:39:06Z")
Let’s say it’s a misdemeanor to make a remark, joking or not, about assassinating the president. Bob, on a public street and within earshot of Secret Service Agent Jeff, states, “I want to kill President Bush.” Secret Service Agent Jeff mishears Bob and thinks he says, “You know who smells? President Bush.” Jeff, a rabid Republican, is outraged by this anti-Bush sentiment and arrests Bob. If Bob were to sue Officer Jeff for damages for violating his First Amendment right to free speech and Fourth Amendment right against false arrest, would Bob prevail on either of the claims, given that (a) he didn’t actually say what Jeff thought he said, and (b) what he _did_ say was, in fact, illegal? (This is not an actual factual scenario. Something similar has come up in a case I’m working on, and I wanted to figure out a hypothetical that would take the issue to its logical end.) ---
**Author:** ![cerberus](https://avatars.discourse-cdn.com/v4/letter/c/71e660/32.png) [@cerberus](https://boards.straightdope.com/u/cerberus)\ **Post date:** [February 4, 2006, 11:46pm UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/2 "2006-02-04T23:46:10Z")
The First Amendment enjoins the Legislative Branch of the US Government from restricting free press or free speech. That being said, let’s parse this… The SSA made the arrest on the grounds of hearing insulting speech about POTUS. That arrest wouldn’t prevail. If the SSA had heard the potential threat correctly, then detainment and investigation would be appropriate. Free speech isn’t extended to threats or spoken conspiracy. Cetain modes of expression or speech constitute crimes: Serious threats, intended as verbal assualt or as planning a crime; Slander, the intentional speaking of falsehoods, with malicious intent; Statement of falsehoods under oath, with the intention of interfering with or otherwise manipulating proceedings. ---
**Author:** ![cerberus](https://avatars.discourse-cdn.com/v4/letter/c/71e660/32.png) [@cerberus](https://boards.straightdope.com/u/cerberus)\ **Post date:** [February 4, 2006, 11:50pm UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/3 "2006-02-04T23:50:11Z")
Tossing this in … > [@](#): > > § 871. Threats against President and successors to the Presidency > > (a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or **knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.** > > (b) The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. The phrase “other officer next in the order of succession to the office of President” as used in this section shall mean the person next in the order of succession to act as President in accordance with title 3, United States Code, sections 19 and 20. The standard seems to be the requirement that a serious threat is being made. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 5, 2006, 12:15am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/4 "2006-02-05T00:15:33Z")
> [@](#): > > The standard seems to be the requirement that a serious threat is being made. That’s not the standard in my hypo, though. 🙂 Forget about the real-world statute. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 5, 2006, 12:44am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/5 "2006-02-05T00:44:22Z")
I’ve been trying to work through this, but I don’t think it can be done. The OP has an imaginary civil lawsuit based on an imaginary arrest outcome we’re not given that is to be decided upon an unconstitutional imaginary law whose wording we don’t have. Maybe real lawyers play games like this in school, but I think even there more info would be necessary for even an imaginary solution. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 5, 2006, 12:53am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/6 "2006-02-05T00:53:37Z")
Let me boil it down, then, **Exapno**. Has there been a First Amendment violation if you are arrested because the officer thought you said A, when (1) you actually said B, and (2) the officer could legitimately have arrested you for saying B? ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 5, 2006, 12:55am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/7 "2006-02-05T00:55:05Z")
…and (3) if you _had_ said A, the officer would have had no right to arrest you. If that wasn’t already implicit in the question. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [February 5, 2006, 10:46am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/8 "2006-02-05T10:46:08Z")
Citing no authority, it seems obvious to me that the arrest is lega-- wait, wait, no, I’m wrong. It’s an unconstitutional arrest. The Agent needed probable cause to believe that Bob had committed or was committing a crime. The Agent did not have that. He should/could have, but he didn’t. Ergo, the arrest is illegal. If I were a cop, I can’t just arrest folks who look like they might be carrying drugs (absent other indicia), even if I happen to guess right. You need the PC for the arrest to be legal, even if the perpatrator is in fact guilty. –Cliffy ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 5, 2006, 5:01pm UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/9 "2006-02-05T17:01:21Z")
Thanks for your take, **Cliffy**. So in your view Bob would have a Fourth Amendment false arrest claim, but not a First Amendment claim? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [February 5, 2006, 6:49pm UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/10 "2006-02-05T18:49:31Z")
> [@Cliffy](#): > > Citing no authority, it seems obvious to me that the arrest is lega-- wait, wait, no, I’m wrong. It’s an unconstitutional arrest. The Agent needed probable cause to believe that Bob had committed or was committing a crime. The Agent did not have that. He should/could have, but he didn’t. Ergo, the arrest is illegal. If I were a cop, I can’t just arrest folks who look like they might be carrying drugs (absent other indicia), even if I happen to guess right. You need the PC for the arrest to be legal, even if the perpatrator is in fact guilty. But that’s not really the issue, is it? The issue is not whether the underlying arrest was legal, but whether equity would bar a civil rights suit because of Bob’s unclean hands or somesuch. I think the OP is looking for a technical, legalistic answer. I don’t have one (because I’ve been out of school far too long to have to do mind-bending no-answer questions anymore unless I get paid). What I do suspect is that Bob couldn’t bring a civil rights suit because in discovery he’d have to admit what he said, which would either bar him in equity or would lead to his arrest for violating the statute. Or would lead the jury to the “no harm, no foul” result of nominal damages. So my answer is: no, Bob won’t have a successful suit because of his unclean hands. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 6, 2006, 3:30am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/11 "2006-02-06T03:30:36Z")
Let me make sure I understand the hypo (making some assumptions to resolve some issues): 1. Bob says he wants to kill Bush, which is illegal. Agent Jeff does not know that Jeff said that. 2. Agent Jeff thinks Bob said Bush smells. Agent Jeff does not believe that this is illegal. His political sensibities offended, Agent Jeff, while on duty, and asserting his role as a federal agent, arrests Bob for purely political reasons. Criticizing Bush’s aroma is not illegal and Agent Jeff knows that criticizing Bush’s aroma is not illegal. 3. Bob sues Agent Jeff, but not the Secret Service or any other governmental entity, for damages based on violations of his rights under the First and Fourth Amendments. I’ll assume this is correct. Let me know if I have any of it wrong. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 6, 2006, 4:59am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/12 "2006-02-06T04:59:40Z")
An interesting bit of trivia: Even if Agent Jeff mistakenly believed that the law prohibited Bob’s statement (about Bush’s aroma), he probably would not have had probable cause. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9950338](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9950338) (articulable suspicion based on mistake of law does not constitue resaonble suspicion); [http://www.wisbar.org/res/capp/2002/02-0783.htm](http://www.wisbar.org/res/capp/2002/02-0783.htm) ("[w]hen an officer relates the facts to a specific offense, it must indeed be an offense"); [http://www.usdoj.gov/osg/briefs/2003/0responses/2003-0309.resp.html](http://www.usdoj.gov/osg/briefs/2003/0responses/2003-0309.resp.html) (collecting cases). OTOH, if Bob had really said Bush stinks, and Agent Jeff really believed he was threatening Bush, and Agent Jeff had arrested Bob, Agent Jeff probable would have had probable cause to do so. * * * Assuming that Agent Jeff arrested Bob believing that Bob had done nothing wrong, the Fourth Amendment part is kind of easy. The basis for holding federal agents liable for constitutional violations is [Bivens v. Six Unknown Federal Narcotics Agents](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=403&invol=388); _and see_, [http://www.fletc.gov/legal/pracexams/OffLiabPracExamMay20\_04.pdf](http://www.fletc.gov/legal/pracexams/OffLiabPracExamMay20_04.pdf) (pdf). But not every constitutional violation is actionable; federal agents have qualified immunity for civil rights violations. [http://www.law.cornell.edu/supct/html/98-83.ZO.html](http://www.law.cornell.edu/supct/html/98-83.ZO.html) In reviewing a claim under \*Bivens \*for false arrest: > [@](#): > > First, the court must “determine whether the plaintiff has alleged the deprivation of an actual constitutional right.” Id. at 609, quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999). Second, the court must “proceed to determine whether that right was clearly established at the time of the alleged violation.” Id. Only if these two questions are answered in the affirmative does the court address the particular conduct in question. The question there is whether an objectively reasonable officer, performing discretionary functions, would have understood his or her conduct violated that clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982); see also Crawford-El v. Britton, 523 U.S. 574, 591 (1998). (This standard incorporates both the prima facie case requirements for a \*Bivens \*claim and the qualified immunity defense.) This case is easy because in the hypothetical, the agent believes Bob is innocent and arrests him anyway. It might be a different story if Agent Jeff believed Bob’s conduct was illegal. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=992336](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=992336) (reviewing cases); [http://www.law.cornell.edu/supct/html/99-1977.ZO.html](http://www.law.cornell.edu/supct/html/99-1977.ZO.html) (reasonable mistake of law by officer regarding the legal limits on officers’ use of force provided officer qualified immunity). So does the fact that Bob might be guilty of some other crime satisfy the probable cause requirement? No. > [@](#): > > Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. [http://www.law.cornell.edu/supct/html/03-710.ZO.html](http://www.law.cornell.edu/supct/html/03-710.ZO.html) While the facts need not establish the crime invoked by the arresting officer at the time of the arrest, _Id._, the facts on which the arrest is based must be known to the officer at the time of the arrest. Here, Agent Jeff did not know that Bob had done anything illegal. Therefore, he is probably liable to Bob for violating his First Amendment rights. Similarly, arrest or prosecution as retalation for innocent speech gives rise to liability based on the First Amendment. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=414&invol=14;](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=414&invol=14;) \*and see \*, [http://laws.lp.findlaw.com/getcase/dc/case/935341a.html](http://laws.lp.findlaw.com/getcase/dc/case/935341a.html) (cases cited in footnote 12). This claim might well survive even if Agent Jeff believed that Bob was violating a law. Retaliatory arrest and prosecution based on speech probably violated the Constitution even if they result in a conviction. _Id_. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 6, 2006, 6:11am UTC](https://boards.straightdope.com/t/first-amendment-question-especially-for-you-lawyers-out-there/343045/13 "2006-02-06T06:11:35Z")
Thanks, **Gfactor** ; your analysis is similar to mine…although I was assuming that Agent Jeff did _not_ know that it was illegal to arrest Bob for the statement he thought Bob said. I’ll point y’all to the opinion I’m writing when it comes out. 🙂