October 2008 Vol. 107 No. 1 THE REVIEW

Limiting a Constitutional Tort Without Probable Cause: First Amendment Retaliatory Arrest After Hartman

Colin P. Watson

Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are “easy to allege and hard to disprove,” they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory prosecution must plead and prove a lack of probable cause for pressing the underlying charge as an element of their claim. This Note argues that a careful reading of Hartman demonstrates that, despite the recent holdings and dicta of several courts, Hartman neither requires nor supports a rule that the presence of probable cause for effectuating the underlying arrest precludes a claim for First Amendment retaliatory arrest (the “no-probable-cause rule”). This Note also seeks to demonstrate that pre-Hartman cases applying the no-probable-cause rule in actions for retaliatory arrest are bad law. After freeing courts from the constraints of Hartman and pre-Hartman circuit precedent, this Note argues that both legal arguments and policy considerations counsel against application of the no-probable-cause rule in actions for retaliatory arrest.

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