In July 2017, Louisiana woman Nanette Krentel was shot in the head and left in a burning house. More than two years passed before anyone was arrested. That person, however, wasn’t alleged to be the murderer. Rather, the sole arrest related to Krentel’s death was that of Jerry Rogers Jr. His crime: criticizing the St. Tammany Parish Sheriff’s Office (STPSO) for its slow investigation of the case, which remains unsolved.

Naturally, Rogers sued the department for violating his rights. In August, the U.S. Court of Appeals for the 5th Circuit ruled that his lawsuit against Sheriff Randy Smith, Chief Danny Culpeper, and Sgt. Keith Canizaro may proceed, confirming they violated clearly established law when they punished Rogers for his speech.

In 2019, the STPSO caught wind that Rogers had denounced the lead investigator, Detective Daniel Buckner, whom Rogers characterized in an email as “clueless.” To pore over his messages, the police obtained what was likely an illegal search warrant, as it listed the qualifying offense as “14:00000,” which does not exist.

Police then arrested, strip-searched, and detained Rogers. He was ultimately released on bond, and the Louisiana Department of Justice declined to prosecute the case. But the primary goal was likely retaliation by humiliation: Before Rogers was booked, the cops publicized a press release about his arrest. Canizaro testified that this was the only time he could remember the office following that order of operations. They also filed a formal complaint with Rogers’ employer, another action that Canizaro said the STPSO had never taken.

Lawyers with the district attorney’s office told police it would be unconstitutional to use Louisiana’s criminal defamation statute to arrest Rogers; the statutory language protecting public officials from criticism was rendered unconstitutional decades ago. Despite this warning from prosecutors, officers not only forged ahead with the arrest, they also sought qualified immunity when Rogers sued. This required them to attest that no reasonable officer could have known that what they were doing was unconstitutional.

The 5th Circuit rejected their argument, and its ruling buttresses the notion that victims are entitled to recourse when the government retaliates against their speech.

But that recourse is not a guarantee. Priscilla Villarreal, a journalist in Laredo, Texas, was jailed in 2017 for her reporting. The government cited an obscure Texas law that makes it illegal to seek nonpublic information from a civil servant if the seeker has an “intent to obtain a benefit.” The benefit, the police said, was that Villarreal could gain more Facebook followers. Judges in the 5th Circuit have ping-ponged back and forth on whether or not the arrest was unconstitutional.

The First Amendment guarantees the right to criticize police. The ability to exercise that right should not depend on how many Facebook followers someone stands to gain or how fraught their relationship is with local law enforcement.

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