First Amendment
First Amendment Retaliation
Immunity and Accountability

Legal Scholars and Public Interest Law Firms Across Ideological Spectrum Back Sylvia Gonzalez in Landmark Supreme Court Fight Against Government Retaliation

Amicus briefs from the ACLU, Thomas More Society, Solicitor General of the United States, and a group of renowned law professors support Gonzalez’s fight for free speech

J. Justin Wilson · December 19, 2023

Yesterday, a wide array of legal scholars and civil rights groups—spanning a cross-section of the ideological spectrum—filed briefs in support of Sylvia Gonzalez in her fight to hold government officials in Castle Hills, Texas, accountable for illegally arresting and imprisoning her in retaliation for petitioning the government and criticizing the city manager. 

Lawyers from eight public interest law firms from across the ideological spectrum, as well as a group of 11 prominent law professors, including Laurence Tribe, wrote amicus briefs in support of Sylvia’s case. The United States Solicitor General also argued that the Fifth Circuit erred in dismissing Sylvia’s claims. 

“Such overwhelming support from legal experts and individual rights advocates across the board is a testament to the importance of the fundamental constitutional rights at stake in Sylvia Gonzalez’s case,” said Institute for Justice Attorney Anya Bidwell. “Sylvia’s case transcends ideological lines, emphasizing that the right to speak out against government action without fear of arrest is a cornerstone of our system of government. This is not about just one individual; it’s about upholding constitutional safeguards for all against government retaliation.”

At issue in Gonzalez v. Trevino, which the Supreme Court agreed to hear in October, is how government officials are given immunity when they conspire to jail their critics. In doing so, the case is likely to have wide-ranging ramifications for how government officials can be held accountable in a court of law.

“When speaking out makes a person a target for ruinous humiliation through invocation of the criminal process over even the most picayune or captious allegation of unlawful conduct, the First Amendment cannot serve [its] vital ends,” wrote Thomas Brejcha for the conservative Thomas More Society.

Lawyers from the ACLU added in their brief: “The risk that police might exploit their vast discretion to arrest people with whom they disagree is not hypothetical … . For example, during the 2020 protests in response to the killings of Breonna Taylor and George Floyd, LMPD arrested some protesters … for vague subjective reasons, like causing ‘annoyance,’ ‘alarm,’ or ‘inconvenience.’”

“Probable cause is insufficient to shield government officials from liability when other objective evidence demonstrates the targeting of citizens for harassment and retaliation,”  wrote Michel Paradis on behalf of a group of 11 law professors. “Ms. Gonzalez’s case is a clear example of how a rule that forecloses all civil liability upon a mere showing of probable cause threatens First Amendment rights. The criminal code is so prolix that government officials need not struggle, if given time and ingenuity, to find probable cause to arrest anyone.”

Finally, the United States Solicitor General wrote that the approach taken by the 5th U.S. Circuit Court of Appeals court below “would inappropriately leave plaintiffs without a Section 1983 remedy in otherwise-meritorious cases” even when they present objective evidence of retaliatory motive. 

“I am deeply moved and immensely grateful for the incredible support from so many legal thinkers and civil rights advocates,” said Sylvia. “The amicus briefs filed by these amazing people who often disagree with each other but agree that I was wronged is a vindication not just for me but for this idea that in America you should be able to criticize the government without being arrested for it.”

The Supreme Court has not scheduled an argument date for the case yet. Sylvia’s case is part of the Institute for Justice’s Project on Immunity and Accountability, which seeks to remove court-created legal hurdles to constitutional accountability like qualified immunity. It is the second case of the project to be heard before the High Court and the first involving free-speech claims.