by Hannah Beattie*

This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

The First Amendment forbids the government from using its otherwise lawful power to retaliate against an individual for engaging in protected speech.2 This principle has been upheld even when such government action would otherwise be lawful or afforded deference,3 and when the resulting injury is miniscule.4 However, the Supreme Court has held that when the government acts in compliance with the Fourth Amendment, through an arrest or prosecution with proof of probable cause, it is in a safe harbor free from First Amendment retaliation claims.5 This jurisprudence presents the question of whether similar safe harbors may be carved out in the context of other constitutional amendments. For example, it is undecided whether a condemnation action, if in compliance with the Fifth Amendment, can be challenged as retaliatory.

This Contribution will argue that the Fourth Amendment safe harbor should not extend to the Fifth Amendment context. Accordingly, an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if that action otherwise complies with the Fifth Amendment.

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The First Amendment prohibits the federal government from “abridging the freedom of speech” of the People.6 The Supreme Court has consistently defended this freedom by laying down the “clearly established” rule that “the First Amendment bars retaliation for protected speech.”7 However, the Court has carved out an exception to this rule by prohibiting First Amendment retaliation claims if the government action in question otherwise complies with the Fourth Amendment.

In Nieves v. Bartlett8 and Hartman v. Moore,9 the Supreme Court held that general compliance with the Fourth Amendment, through proof of probable cause, shields government actors from section 1983 claims for retaliatory arrests and prosecutions. The Court distinguished Nieves from its decision in Lozman v. City of Riviera Beach, which held that Fourth Amendment compliance could not shield a municipality from a First Amendment retaliatory arrest claim, on the grounds that Lozman involved the particular circumstances of an alleged official municipal policy of retaliation.10 Nieves also carved out an exception to this safe harbor rule by clarifying that compliance with the Fourth Amendment does not bar a First Amendment retaliation claim in “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.”11

 Nieves and Hartman argue that numerous countervailing policy concerns implicated in the context of retaliatory arrests and prosecutions justify barring First Amendment retaliation claims and allowing the constitutionality of an arrest or prosecution to be established by Fourth Amendment compliance alone. First, the Court in Nieves12 and Hartman13 reasoned that compliance with the Fourth Amendment, through proof of probable cause, makes retaliatory animus on the part of the government actor less likely. Second, as the Court in Nieves explained, speech is often a legitimate consideration in determining whether there is probable cause for an arrest, which muddles the inquiry into whether there was legitimate consideration of speech or illegitimate First Amendment retaliation against speech.14 In a similar vein, the Court in Lozman declined to bar a First Amendment retaliation claim because city officials could not have considered Lozman’s earlier protected speech in deciding to have him arrested.15 Third, the Nieves Court expressed concerns that recognizing First Amendment retaliation claims in the Fourth Amendment context would lead to a flood of frivolous litigation that would inhibit the ability of officers and prosecutors to enforce laws.16 Finally, Hartman reasoned that retaliatory prosecution claims often involve a complex causal chain that requires imputing the animus of one actor to the prosecutor who ultimately took the adverse action.17 As such, disentangling causation to establish retaliation would be too difficult.

The Supreme Court has never examined whether compliance with the Fifth Amendment shields a federal condemnation action from a First Amendment retaliation defense. The Fifth Amendment mandates that takings satisfy the requirements of just compensation, public use, and due process.18 The Court has emphasized that defenses to condemnation actions should be limited to situations where there is no showing of public use.19 This limitation is predicated on the desire to prevent the judiciary from substituting its judgment on valid public use for that of the democratically-elected legislature.20

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Compliance with the Fifth Amendment should not bar a First Amendment retaliation defense to a condemnation action because the reasoning behind the Fourth Amendment safe harbor does not extend to the Fifth Amendment context. Furthermore, the rationale used by the Court to limit defenses to condemnation actions, which is to ensure that the judiciary does not substitute its judgment for that of the legislature, does not apply when an individual is claiming First Amendment retaliation.

First, compliance with the Fifth Amendment does not make retaliatory animus less likely. In the context of the Fourth Amendment, proof of probable cause requires an objective ex ante analysis, which makes retaliatory animus less likely and justifies barring First Amendment retaliation claims.21 Conversely, in the Fifth Amendment context, animus is more likely because the required showing of public use is an easy, post hoc justification that can be formulated in just about every case.22 In fact, situations in which “public use” has been used to disguise regulatory animus have already arisen in local government condemnations.23

Second, because an individual’s speech is not a legitimate consideration in the decision to condemn her property, it is less likely that the inquiry between legitimate and illegitimate consideration of speech will become muddled in the Fifth Amendment context. Although a government actor may, and oftentimes should, consider an individual’s speech in determining whether there is probable cause for an arrest or prosecution, it is unlikely that a government actor could legitimately consider an individual’s speech in determining whether to condemn her land for public use. The case of condemnation is far more analogous to the facts in Lozman where it was “difficult to see why a city official could have legitimately considered that Lozman had, months earlier, criticized city officials” in deciding to have him arrested.24 Absent the concern that government actors might be legitimately considering an individual’s speech, the Court in Lozman declined to bar a First Amendment retaliation claim, and should do so in the case of a condemnation action as well.

Third, recognizing First Amendment retaliation claims in the Fifth Amendment context would neither lead to a flood of litigation, nor inhibit the government’s ability to enforce laws. Unlike arrest and prosecutions, condemnation is a rare occurrence, a fact that mitigates concerns about an influx of claims. Additionally, there is little risk that First Amendment retaliation claims will frustrate government purposes because any condemnation intentionally entails an intricate, inquiry-intensive process.25 This stands in contrast to Nieves, where the Court noted that arrests involve split-second decisions and expressed concern that the threat of retaliatory claims could dampen police ardor and reduce communication between officers.26 In contrast, this concern was not present in Lozman, since the city government, not the officer, was subject to the retaliation claim. Accordingly, the Court concluded that no safe harbor against the retaliation claim was necessary.27 As opposed to having a chilling effect, recognizing First Amendment retaliation claims in the Fifth Amendment context would encourage government officials to be more explicit about the reasons why they are considering eminent domain. If the government clearly documents why a parcel of land is being condemned and provides a valid public use, this documentation would serve as a deterrent to impermissible takings and could be used as a defense later on.

Fourth, asserting a First Amendment retaliation defense against a federal government condemnation would not necessarily implicate the animus of an actor not ultimately responsible for the condemnation, thereby avoiding the complex causal inquiry contemplated in Hartman. As the Court in Hartman explained, because prosecutors have immunity, the defendant in a Fourth Amendment retaliatory prosecution case will always be a non-prosecutor. Accordingly, a retaliatory prosecution claim requires a showing that the animus of the non-prosecutorial actor caused the ultimate adverse action of the prosecutor.28 In contrast, an individual asserting a First Amendment retaliation defense against a condemnation action would be required to demonstrate animus on the part of the actors who made the condemnation decision—for example, the condemnation committee—creating a far simpler causal inquiry than in retaliatory prosecution context. As in Lozman, the individual would need to prove the existence and enforcement of an official policy of retaliation, a particularly troubling and potent form of retaliation for which there is “compelling need for adequate avenues of redress.”29 In fact, in a federal condemnation action, there may be no recourse for an individual outside of a full retaliation defense because the harm is the chilling of the speech itself, and because other claims for damages may be foreclosed.30

Additionally, allowing the Fifth Amendment to thwart scrutiny of other constitutional provisions would lead to grossly unconstitutional results. For example, the government could target an individual’s land based on race, alienage, or natural origin;31 or the government could use its power of eminent domain to become the only lawful supplier of newsprint.32 If the government need only comply with the Fifth Amendment’s bare requirements, these actions would be permitted. Recognizing that these are impermissible results, lower courts have found a basis for permitting First Amendment retaliation claims for local or state governments’ use of eminent domain under state constitutions.33 Retaliatory condemnation under the First Amendment, in effecting similarly impermissible results, should be treated no differently.

Finally, retaliation claims should act as a defense to condemnations in order to ensure recourse for First Amendment violations without judicial inquiry into legislative policy. Although the Court has limited defenses to condemnation to situations where the government has departed “from the statutory limits,” the reasoning behind this limitation does not apply when a constitutional right is at stake.34 First, cases in which the Court has limited defenses to condemnation have not been premised on constitutional violations.35 A constitutional violation is far more insidious than a statutory violation and should receive more comprehensive scrutiny. Furthermore, the reason why courts have constrained defenses to condemnation is to ensure that the judiciary does not subvert the judgments of democratically elected legislatures as to the “necessity, expediency, policy and propriety in a condemnation action.”36 However, the analysis of a First Amendment retaliation claim does not require courts to probe these issues, nor does it frustrate the government’s ability to make policies that represent the will of the people. A First Amendment retaliation defense to condemnation instead asks for vindication of a right to protected speech, which is essential to an individual’s ability to participate in the democratic process. While it is logical to defer to the legislature for the proper “ends” of condemnation, the question of proper “means” is a separate, narrowly focused, and judicially manageable inquiry. The analysis of a First Amendment defense falls into the latter category.37

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The particular circumstances of Nieves and Hartman may have justified carving out a Fourth Amendment safe harbor in which government actors would be free from claims of retaliatory arrests and prosecutions. These particular circumstances, however, are not present in the Fifth Amendment context of claims of retaliatory condemnation. The nature of condemnation, from the easy, post hoc justification of public use to the rare, deliberate nature of a condemnation action, demonstrates that mere compliance with the Fifth Amendment is insufficient to shield the federal government from First Amendment scrutiny. Moreover, given the chilling nature of retaliation, the lack of recourse in the Fifth Amendment context, and the inapplicable prior justifications for judicial deference to condemnation, a successful First Amendment retaliation claim should act as a full defense to condemnation. As lower courts have recognized, holding otherwise would lead to the impermissible result that the government could specifically target property for condemnation based on race, religion, or speech.

* Hannah Beattie is a J.D. Candidate (2021) at New York University School of Law. This piece is a commentary on the 2020 Problem at the Evans Constitutional Law Moot Court Competition held in Madison, Wisconsin. The issue in this problem dealt with whether an individual could assert a First Amendment retaliation defense against a condemnation action by the federal government that otherwise complied with the Fifth Amendment. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of the argument assigned to the author at the Evans Constitutional Law Moot Court Competition.

2. E.g., Crawford-El v. Britton, 523 U.S. 574, 592 (1998).

3. See, e.g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84 (1977) (establishing that at-will employee nonetheless had constitutional right to not be discharged in retaliation for speech).

4. See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (noting First Amendment retaliation could be as trivial as failing to hold a birthday party for a public employee).

5. Nieves v. Bartlett, 139 S. Ct. 1715, 1726 (2019); Hartman v. Moore, 547 U.S. 250, 266–67 (2006).

6. U.S. Const. amend. I.

7. Crawford-El v. Britton, 523 U.S. 574, 592 (1998).

8. 139 S. Ct. 1715, 1726 (2019).

9. 547 U.S. 250, 266–67 (2006).

10. 138 S. Ct. 1945, 1954 (2018).

11. 139 S. Ct. at 1727.

12. Id. at 1724.

13. 547 U.S. at 261.

14. 139 S. Ct. at 1724.

15. 138 S. Ct. at 1954.

16. 139 S. Ct. at 1724–25.

17. 547 U.S. at 259.

18. U.S. Const. amend. V.

19. See, e.g., Berman v. Parker, 348 U.S. 26, 33 (1954) (holding that the judicial inquiry should end once public use for a condemnation action has been established).

20. Id.

21. 139 S. Ct. at 1723.

22. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1025 n.12 (1992) (discussing how justifications for takings can be formulated in practically every case and how public-use requirement can only be failed by a “stupid staff”).

23. See Sable v. Myers, 563 F.3d 1120, 1122 (10th Cir. 2009) (discussing a city council’s condemnation of private property during which a council member asked an attorney if he could condemn the property with “just” a showing of public use, before concluding, “It’s good to be King.”).

24. 138 S. Ct. at 1954.

25. See Berman v. Parker, 348 U.S. 26, 33 (1954) (discussing wide variety of physical, aesthetic, and monetary values that eminent domain requires government to take into consideration).

26. 139 S. Ct. at 1724–25.

27. 138 S. Ct. at 1954.

28. Hartman v. Moore, 547 U.S. 250, 262 (2006).

29. 138 S. Ct. at 1954.

30. See Wilkie v. Robbins, 551 U.S. 537, 556–57 (declining to extend Bivens claim for damages to Fifth Amendment context).

31. See Tex. Border Coal. v. Napolitano, 614 F. Supp. 2d 54, 65 (D.D.C. 2009) (noting that a claim that the federal government condemned border lands based on race, alienage, or natural origin, even if for the valid public use of border protection, would require scrutiny beyond rational basis).

32. See Time Warner Entm’t Co., L.P. v. F.C.C., 105 F.3d 723, 728 (D.C. Cir. 1997) (Williams, J., dissenting from denial of rehearing in banc) (finding that it would implicate “rather serious First Amendment problems if the government used its power of eminent domain to become the only lawful supplier of newsprint . . . .”).

33. See, e.g., Rolf v. City of San Antonio, 77 F.3d 823 (5th Cir. 1996) (holding that the district court erred in dismissing landowners § 1983 action alleging city officials condemned their land in retaliation for exercising their First Amendment rights); Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422 (8th Cir. 1986) (holding that landowners sufficiently stated a § 1983 cause of action against city officials for condemning their land in retaliation for exercising their First Amendment rights).

34. Catlin v. United States, 324 U.S. 229, 240–41 (1945).

35. See Shoemaker v. United States, 147 U.S. 282 (1993) (declining to find a violation of the Maryland act of cession was a defense to federal condemnation); Berman v. Parker, 348 U.S. 26, 35 (1954) (declining to extend a condemnation defense because an individual’s property itself was not blighted, though this was the purported public use).

36. United States v. 1.04 Acres, 538 F. Supp. 2d 995, 999 (S.D. Tex. 2008).

37. See Thomas W. Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61, 67 (1986).