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Written by David L. Hudson Jr., last updated on December 1, 2023

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In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court ruled that plaintiffs alleging federal civil claims—in this case, violation of First Amendment expressive rights— for retaliatory prosecution must prove the absence of probable cause for the retaliation as an essential element of their claims.


Moore criticized postal service for not using his new technology

The case involved William G. Moore Jr., the chief executive officer of a company that offered multiple optical character readers that would enable the U.S. Postal Service to read and sort mail much quicker than with its standard single-line scanning machines. Moore had lobbied Congress, testified before committees, and engaged in other First Amendment–protected activity that criticized the postal service for not using the new technology.


Postal Service investigated Moore for criminal charges

The U.S. Postal Service eventually employed this new technology but entered into a contract with one of Moore’s competitors. Postal inspectors then investigated Moore to determine whether he had participated in a kickback scheme with a postal service governor. The postal inspectors urged that criminal charges be brought against Moore and his company, but after a six-week trial, a federal district court dismissed the charges, finding a “complete lack of direct evidence” linking Moore to criminal wrongdoing.


Moore claimed investigation was retaliation for exercising his First Amendment rights

Moore then filed a federal civil claim under Bivens v. Six Unknown Fed. Narcotics Agents (1971), alleging retaliation for the exercise of his First Amendment rights. He claimed that the prosecutor and postal inspectors had engineered the investigation because he had publicly criticized the U.S. Postal Service. A federal court granted the prosecutor immunity, but the claims against the postal inspectors continued. The inspectors contended that the claims against them must fail because Moore must prove a lack of probable cause. Moore countered that he need only show that a substantial factor in the decision to bring the unfounded criminal charges was retaliation for his protected activities.


Court said Moore had to show lack of probable cause for the investigation

By a 5-2 vote (Chief Justice John G. Roberts Jr. and Justice Samuel A.Alito Jr. did not participate), the Supreme Court ruled that a plaintiff alleging retaliatory prosecution under Bivens or under 42 U.S.C. section 1983 must show a lack of probable cause. Writing for the majority, Justice David Souter explained, “Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost,it makes sense to require such a showing as an element of a plaintiff’s case, and we hold that it must be pleaded and proven.”


Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, dissented, noting that the record in the case showed that the postal inspectors engaged in “unusual prodding” of the prosecutor to institute criminal charges against Moore. Ginsburg reasoned that requiring a lack of probable cause will deter “only entirely baseless prosecutions” and allow “retaliators” to pursue many claims that should not be brought. She agreed with the federal appeals court standard that allows retaliatory prosecution claims where the plaintiff shows “strong motive evidence combine(d) with weak probable cause” and that the claim would not have been brought but for the retaliatory animus.


David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​


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