Amy L. Moore * | 23.5 | Article | Citation: Amy L. Moore, Plausible Retaliation: Using Modern Pleading Standards as a Blueprint for First Amendment Retaliation Claims, 23 U. Pa. J. Const. L. 1032 (2021).

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To effectively maintain a First Amendment retaliatory arrest claim, a plaintiff should plead the elements the Supreme Court identified in Mt. Healthy to the modern standard of plausibility. This approach is preferable to the one adopted by the Court in 2019 in Nieves v. Bartlett, which ignored pleading standards and instead added another element to the cause of action. Under that approach a plaintiff must prove a lack of probable cause to recover unless she fits into a small exception that is almost impossible to prove. This article reviews Supreme Court precedent on the retaliatory arrest issue, the circuit split that developed over the same time, and Supreme Court precedent on pleading standards to argue that the existence of probable cause should not bar a plaintiff’s claims. Plaintiffs must plead and prove the subjective, retaliatory animus of arresting officers to make their case, and they should do so plausibly under Twombly.

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*Professor of Law and Director of Advocacy at Belmont University College of Law. Special thanks to Patrick Riley who helped me find my voice on this issue (even if a bit involuntarily), Allyson Lynch who endlessly supported this work, and Lindsay Dial, Lane Howell, and Josh Kleppin who helped with the final bits of research and editing.