IJ Heads to the U.S. Supreme Court to Take On Backdoor Censorship

Anya Bidwell
Anya Bidwell  ·  November 1, 2023

Every state has laws against jaywalking. In some states, it is technically punishable by a prison term—though, as a matter of course, no one in America goes to prison for jaywalking.

Now imagine you were arrested for jaywalking after publishing an article on the corrupt practices of your local officials. What do you think is more likely: that you were arrested because of your pedestrian violation or because you criticized the government?

According to the 5th Circuit, that doesn’t matter. As long as there is probable cause to show that you jaywalked, you cannot sue the government for punishing your speech. 

IJ now has an opportunity to persuade the U.S. Supreme Court to overturn this absurd rule. 

We represent Sylvia Gonzalez, the first Hispanic woman to win a council seat in her hometown of Castle Hills, Texas. As her first act in office, Sylvia organized a petition to remove a city manager who disappointed Sylvia’s constituents by failing to maintain public infrastructure.  

This upset the mayor and the police chief, who ran the town as their fiefdom. To punish Sylvia for daring to challenge their political ally, they seized on a broad and never-enforced record-tampering statute to orchestrate Sylvia’s arrest. Absurdly, they claimed she had attempted to steal her own petition by placing papers in a binder during a council meeting. Astonishingly, the warrant application even admitted that Sylvia’s petition to remove the city manager—her exercise of a right explicitly enshrined in the First Amendment—was the reason for her arrest.

The following day, Sylvia, a grandmother with not so much as a traffic ticket to her name, was handcuffed and had her mugshot splashed across local media. Forced into an orange shirt, she spent a day in jail, sitting on a metal bench and avoiding the restroom (which had no doors for privacy). A Bexar County prosecutor promptly dismissed the charges against Sylvia, but the damage was already done. Sylvia, horrified by what happened to her, stepped down from the council and removed herself from public life. The message had been received: Shut up, or else. 

So IJ helped Sylvia file a lawsuit to vindicate her First Amendment rights. A lower court denied the city officials qualified immunity. But the 5th Circuit held on appeal that because there was probable cause for Sylvia’s arrest, the officials couldn’t be sued—no matter how obviously retaliatory their actions.

Sylvia’s experience is disturbingly common, and we petitioned the Supreme Court to make sure it doesn’t happen again. This fall, the Justices announced they will hear our case. A high court victory would mean that government officials would no longer be able to launder First Amendment violations through probable cause and then claim immunity for their retaliatory actions. If we win, free speech will be vindicated and immunity will be curtailed—and Sylvia will finally have her day in court. With IJ by her side, no petty local tyrant is going to shut her up. u

Anya Bidwell is an IJ attorney and one of the leaders of IJ’s Project on Immunity and Accountability. 

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