The government may not punish people for protected speech, for petitioning the government, or for gathering news. When a state or local official retaliates against someone for that kind of activity, the person may have a claim under 42 U.S.C. §1983.
For private citizens, the Fifth Circuit has described the elements in cases such as Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002). The plaintiff generally must show:
Retaliation can take many forms: arrests, citations, threats, code enforcement, removal from public meetings, or blocking people from official social media pages. Government employees have a different, more limited test that is outside the scope of this page.
Retaliatory-arrest claims have an added hurdle. In Nieves v. Bartlett, 587 U.S. 391 (2019), the Supreme Court held that a plaintiff generally must show the arrest lacked probable cause. The Court recognized a narrow exception where the plaintiff presents objective evidence that they were arrested when otherwise similarly situated people who had not engaged in the same protected speech were not.
In Gonzalez v. Trevino, 602 U.S. 653 (2024), a case from Castle Hills, Texas, the Supreme Court returned to that exception. The Court held the Fifth Circuit did not properly apply Nieves, vacated, and remanded. Gonzalez, 602 U.S. at 655.
Officials rarely admit retaliation, so motive is often shown through timing, statements made during the encounter, departures from normal practice, and how similar situations were handled. Video and written records made close in time are often important.
Our article Can the Government Punish You for Speaking Out? discusses retaliation in more depth. If the retaliation came as a lawsuit from a private party over your speech, the Texas anti-SLAPP law may apply instead; see the TCPA 60-day deadline. Officials may also raise qualified immunity.
This page is general information about Texas and federal law, not legal advice for your situation. Laws and court decisions change, and every case turns on its own facts.
Offensive or critical speech directed at police is often protected. Whether a particular arrest is lawful depends on the facts, including whether probable cause existed for an offense.
Usually, under Nieves v. Bartlett, but not always. There is a narrow exception for objective evidence that similarly situated people were not arrested. In Gonzalez v. Trevino (2024), the Supreme Court held the Fifth Circuit did not properly apply that exception and sent the case back.
No. Section 1983 applies to people acting under color of state law, such as police and government officials. Private parties generally are not covered.
Understanding First Amendment Retaliation Claims in Texas
But when government officials respond to criticism or protected expression with punishment, discipline, or arrest, constitutional protections may be violated.
Texas just rolled back campus free speech protections. Here’s what students and faculty need to know about the new limits on protests, academic freedom, and First Amendment rights in 2025.
If you believe a Texas officer or government agency violated your civil rights, contact Grable PLLC to discuss your situation. Filing deadlines apply, so it helps to reach out sooner rather than later.
