NEFAC, Press Advocates: Hold Federal Officials Personally Liable for Damages in First Amendment Cases

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The New England First Amendment Coalition and a group of press advocates are calling for federal officials to be held personally liable for damages when they retaliate against those exercising constitutional rights such as newsgathering.

“When retaliation chills reporting. . . the impact on First Amendment freedoms is ‘immediate and irreversible,’ as much so as any classic prior restraint,” the groups explained in a Jan. 25 amicus brief drafted by the Reporters Committee for Freedom of the Press.

“Nothing can, at that point, restore to the public news never gathered or photos never taken,” they wrote. “As a result, the right to report depends critically on an adequate deterrent to abuse.”

The groups filed the amicus brief in the U.S. Supreme Court case Egbert v. Boule. One of the primary issues in the case is whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

In Bivens, the Supreme Court held that a violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures.

In their brief, amici applied Bivens to First Amendment rights and argued that:

(1) The press is a tempting target for federal officials seeking to retaliate against reporting on matters of public concern.
(2) When federal officials retaliate against the press, the choice of remedy is often damages or nothing.
(3) When federal officials retaliate against the press, no special factors uniformly counsel hesitation in all imaginable cases.

“As the experience of the press demonstrates, often a damages remedy for retaliation is both workable and indispensable to the enforcement of First Amendment rights,” according to the brief. “To strip reporters of that recourse — not just on facts that resemble the ones presented here, but also in a broad and varied class of cases not before this Court — would invite officials to punish the press for performing its constitutional function.”

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. The coalition regularly testifies in matters involving First Amendment freedoms and government transparency. All coalition briefs, advocacy letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Leadership Circle donors include Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Boston University, WBUR-Boston, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett for the First Amendment Museum, Linda Pizzuti Henry and Connecticut Public.