The Court did not focus on the First Amendment question during oral argument, but several advocates addressed the importance of Bivens to the First Amendment in amicus briefs. The Knight institute joined in one of those briefs, authored by the Reporters Committee for Freedom of the Press, which explains the importance of Bivens to protecting newsgathering activities.

Another important reason the Supreme Court should not close the door on these claims lies in a key piece of the Court’s own rationale underlying the Bivens doctrine: The Court has reasoned that damages remedies for rights violations should be left to the legislative branch, but the democratic process that informs the legislation of new remedies cannot function where the free flow of speech is undermined.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court inferred a cause of action for damages against federal agents who had violated an individual’s Fourth Amendment rights. The Court wrote that, where rights have been invaded, “courts will be alert to adjust their remedies so as to grant the necessary relief.” While courts subsequently recognized the availability of Bivens claims to remedy other constitutional rights violations, over the last decade, the Supreme Court has significantly limited Bivens’ reach.

Now, where a litigant proposes that Bivens should be applied in a new circumstance, courts must consider whether “special factors” counsel hesitation before allowing the Bivens claim to proceed. Chief among these factors is the principle embodied in the Constitution’s “separation of powers.” The Court has said that the decision of whether to provide a damages remedy should almost always be left to Congress—“those who write the laws.” In other words, the Court has cautioned against recognizing a damages action so as not to intrude upon Congress’s prerogative to do so (or not), as it sees fit.

In the context of First Amendment retaliation claims, this reasoning counsels in favor of allowing a Bivens action. The Court has said that remedies for federal officers’ violations of fundamental rights should be primarily left to the democratic process. But that process only functions when elected officials are informed through the free flow of ideas. Retaliation chills individuals from participating in public discourse that could influence the democratic process and, more specifically, policymaking. Therefore, retaliation also undermines Congress’s ability to respond to the public and to provide for the remedies the Supreme Court has said it is best equipped to make.

Allowing a Bivens remedy for First Amendment retaliation would go a long way toward removing this chill and protecting the free flow of information to elected officials, and, therefore, preserving the assumptions on which the Court’s Bivens reasoning rests.

Free speech and the free exchange of ideas are integral to the democratic system—these protected activities influence who is elected, what is discussed in the public sphere, what elected representatives hear, and what legislation is passed or amended. As the Court has recognized throughout its history, “a fundamental principle of our constitutional system” is “[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” When the free flow of speech is undermined, so is the democratic process.

Retaliation by officials against individuals based on the views they express or the grievances they discuss breaks the chain between speech, the democratic process, and legislative remedies. The Court has reasoned that Congress, rather than the judicial branch, is the body responsible for creating laws and legal remedies to address rights violations, through statutory causes of action or administrative schemes. This reasoning holds only if Congress is first able to hear that a problem exists, and receive enough input to create an adequate remedy. Where an individual is retaliated against for trying to petition the government to have their rights remedied, then the democratic process for legislating remedies that the Court relied on in Bivens cannot properly function.

A Bivens action for First Amendment retaliation is, for this reason, uniquely important. It protects the ability of the public to seek from Congress remedies that the Supreme Court itself has denied. In the words of the Court itself, it would be incongruent to “hold that the government retains the power to act in this representative capacity, and yet hold, at the same time, that the people cannot freely inform the government of their wishes.”

A Bivens damages remedy is needed to ensure that the political process for creating legislative remedies is not subverted by the very officials against whom those remedies would lie. An injunctive remedy is insufficient, not only because injunctions do not have the deterrent effect that damage awards do, but also because it is often difficult for plaintiffs to show that the violative conduct is likely to recur (a requirement for standing to seek injunctive relief), and because injunctions, which are of course prospective, cannot unchill speech that has already been quieted.

The possibility of monetary damages through a Bivens claim creates for federal officers a powerful and necessary deterrent against First Amendment retaliation, and so protects the ability of individuals to engage in the free exchange of ideas and to freely petition Congress. Additionally, the possibility of monetary damages may overcome the hesitation of those who wish to reveal government misconduct but fear further retaliation.

The availability of a Bivens action for First Amendment retaliation claims would allow Congress to play its role in crafting remedies, and thereby preserve the democratic process the Court has pointed to as the reason for its reluctance to extend Bivens. The Supreme Court should not foreclose the availability of Bivens to First Amendment retaliation claims.