The First Amendment protects speech, religious exercise, assembly, press, and petitioning from many forms of government retaliation. Government action taken because of protected expression may support a civil-rights claim, depending on the facts, the type of government action, causation, and available defenses. Here is an overview of when a claim may arise in Colorado.
Common First Amendment claims
- Retaliatory arrest: Arrested for protected speech, including criticism of police. A claimant generally must address probable cause, subject to the narrow objective-evidence exception recognized by the Supreme Court.
- Permit denials: A city refuses a permit for a protest or rally based on the message.
- Religious discrimination: Government action burdens religious practice without compelling justification.
- Press restrictions: Journalists prevented from covering public events or interactions with police.
- Public employee speech: Government employees punished for speaking on matters of public concern outside their official duties.
- Student speech: School discipline for protected expression that does not substantially disrupt school operations.
What you must show
For many First Amendment retaliation claims:
- You engaged in protected First Amendment activity.
- The government took adverse action (arrest, fine, denial).
- The protected activity was a substantial or motivating factor in the adverse action.
The third element is often the hardest to prove and may be evaluated through timing, statements by officials, and patterns of treatment. Retaliatory-arrest claims have an additional probable-cause framework: under Nieves v. Bartlett, a claimant generally must plead and prove the absence of probable cause. A narrow exception may apply when objective evidence shows that otherwise similarly situated people who did not engage in the same protected speech were not arrested; Gonzalez v. Trevino explains that this comparison is not limited to virtually identical prior arrests.
Damages
Potential remedies depend on the claim, defendant, proof, and requested relief. Compensatory damages may be available for proven injury. Punitive damages may be available against an individual official under the governing standard, but not against a municipality under Section 1983. A court may award a reasonable attorney fee to a prevailing party under Section 1988, and injunctive relief has separate standing and equitable requirements. Federal qualified immunity may also limit damages claims against individual officers; Colorado state-law claims require a separate analysis.
Frequently Asked Questions
Can I sue if a police officer arrests me for filming them?
In the Tenth Circuit, filming police officers performing their official duties in public is protected First Amendment activity. Whether an arrest supports a retaliation claim remains fact-specific and may depend on probable cause, causation, reasonable restrictions, and defenses.
What is the deadline?
Generally 2 years for federal Section 1983 claims. Colorado state law claims may have different timelines.
How much does a First Amendment case cost?
Fee arrangements vary by firm and matter. Counsel can explain the applicable arrangement during a consultation.
Get your case evaluated
Call 1 (888) 746-5245.
Related: Civil Rights & Police Misconduct.
