First Amendment Rights Lawyer in San Antonio

The First Amendment protects free speech, a free press, religious exercise, peaceful assembly, and the right to petition the government. When a police officer, city, county, school, or other government official punishes someone for using those rights, or a private party files a lawsuit to silence protected speech, Grable PLLC can review whether a claim or defense may be available. Brandon J. Grable represents clients in San Antonio and across Texas in state and federal court and on appeal. See also our civil rights litigation page.

Constitutional Framework

The First Amendment limits state and local governments through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Federal law, 42 U.S.C. § 1983, allows a person to sue any person who, acting under color of state law, deprives them of rights secured by the Constitution and federal law. Most First Amendment claims against Texas police officers, cities, counties, and other local officials are brought under § 1983 and may seek damages, a court order stopping the conduct, or both.

Types of Matters

• Retaliation by officials for criticism, complaints, or other protected speech
• Arrests, detentions, and phone or camera seizures for recording police, including First Amendment auditors
• Protest, public forum, and permit restrictions, including curfews and ordinances that limit expression
• Discipline or firing of public employees for speaking on matters of public concern
• Defense of defamation and other lawsuits over online speech, including Texas anti-SLAPP motions
• Religious liberty claims and speech at city council, commissioners court, and school board meetings

Retaliation for Protected Speech

The government generally may not punish people for criticizing officials, filing complaints, or speaking about public issues. In the Fifth Circuit, a private citizen bringing a retaliation claim generally must show that (1) they were engaged in constitutionally protected activity, (2) the official's action caused an injury that would chill a person of ordinary firmness from continuing that activity, and (3) the action was substantially motivated by the protected activity. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

Retaliatory arrest claims have an added step. Under Nieves v. Bartlett, 587 U.S. 391, 402, 406–07 (2019), a plaintiff generally must show that the officer lacked probable cause. A narrow exception applies when the plaintiff offers objective evidence that similarly situated people who were not engaged in the same kind of protected speech were not arrested. In Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (per curiam), a case from Castle Hills, Texas, the Supreme Court held that the Fifth Circuit had read that exception too narrowly by demanding virtually identical comparators, and it vacated the judgment and sent the case back. Our guide to First Amendment retaliation claims and our article Can the Government Punish You for Speaking Out? explain more.

Recording Police and First Amendment Auditors

In Turner v. Driver, 848 F.3d 678, 688 (5th Cir. 2017), the Fifth Circuit recognized a First Amendment right to record the police, subject only to reasonable time, place, and manner restrictions. Because that right was not yet clearly established when the plaintiff recorded in 2015, the court held that the officers had qualified immunity on his First Amendment claim. Today, an arrest, detention, threat, or phone seizure in retaliation for lawful recording may support a First Amendment claim, and an arrest, detention, or seizure without legal justification may also support a Fourth Amendment claim. Grable PLLC has represented content creators and First Amendment auditors in these matters. See your right to record police in Texas and our page for YouTube and content creators. If the incident involved local officers, see also our San Antonio police misconduct page.

Protests, Public Forums, and Permits

Public streets, sidewalks, and parks are traditional public forums, where speech receives strong protection. McCullen v. Coakley, 573 U.S. 464, 476 (2014); Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37, 45 (1983). The government may set content-neutral time, place, and manner rules, but those rules must be narrowly tailored to serve a significant government interest and leave open ample alternative channels for communication. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Permit systems, curfews, and ordinances that restrict demonstrating or filming can be challenged when they go further than the Constitution allows. For a recent Fifth Circuit example, see our post on a courthouse lawn curfew and the First Amendment.

Public Employee Speech

Public employees keep some First Amendment protection, but courts apply a different test. When an employee speaks as a citizen on a matter of public concern, courts weigh the employee's interest against the government employer's interest in running its operations efficiently. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). When an employee speaks as part of official job duties, the First Amendment generally does not protect that speech from employer discipline. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). These cases depend closely on the facts, including what the job required.

Online Speech, Defamation Defense, and the Texas Anti-SLAPP Law

People are sometimes sued over posts, reviews, videos, or reports. The Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code ch. 27, allows a defendant sued over the exercise of free speech, petition, or association to ask the court to dismiss the case early. The motion generally must be filed within 60 days after service, Tex. Civ. Prac. & Rem. Code § 27.003(b), and if the court dismisses the claim, it generally must award the moving party court costs and reasonable attorney's fees, § 27.009(a)(1). The Fifth Circuit has held that the TCPA does not apply in federal diversity cases because it conflicts with Federal Rules of Civil Procedure 12 and 56. Klocke v. Watson, 936 F.3d 240, 242, 245–47 (5th Cir. 2019). See social media defamation defense and Texas anti-SLAPP (TCPA) defense.

Religious Liberty and Speech at Government Meetings

The First Amendment also protects the free exercise of religion and the right to petition the government. Grable PLLC reviews claims involving government interference with religious exercise and with speech at public meetings, such as a speaker being cut off, removed, or threatened for criticizing officials. For a Fifth Circuit example, see our post on a parish meeting speech case.

How Section 1983 Claims Proceed

Officials sued personally for damages usually raise qualified immunity. Under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), officials are shielded from damages unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. Cities and counties cannot claim qualified immunity, Owen v. City of Independence, 445 U.S. 622, 638 (1980), but under Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), they are liable only when their own policy or custom caused the violation. See our guides to qualified immunity and suing a city.

Section 1983 claims in Texas generally must be filed within two years. Section 1983 borrows the state's general or residual limitations period for personal-injury actions, Owens v. Okure, 488 U.S. 235, 249–50 (1989), which in Texas is the two-year period in Tex. Civ. Prac. & Rem. Code § 16.003(a). When the claim accrues, and so when the period starts, is a question of federal law and depends on the claim. Wallace v. Kato, 549 U.S. 384, 388 (2007). See Section 1983 deadlines.

Related Case Results

Brandon J. Grable's case results include a $500,000 settlement in a First Amendment case involving Leon Valley police officers, see Zinter v. Salvaggio, 610 F. Supp. 3d 919 (W.D. Tex. 2022) (granting in part and denying in part the officers' motion for summary judgment), and a federal challenge to a City of Corrigan ordinance restricting public expression, which was resolved with an agreed permanent injunction. Past results do not guarantee a similar outcome in any future matter. Every case depends on its own facts.

Contact Grable PLLC

Grable PLLC, 12451 Starcrest Dr, Suite 206, San Antonio, TX 78216. Call (210) 963-5297 or email intake@grable.law. Calls and emails are accepted 24/7. Office visits are by appointment only. You can also reach us through our contact page.

This page provides general information, not legal advice. Reading it or contacting the firm does not create an attorney-client relationship.