Mason Murphy was minding his business on May 15, 2021, walking on the shoulder of a rural road in Sunrise Beach, Missouri , at the Lake of the Ozarks. But an officer saw him and launched an investigation that has now gone all the way to the U.S. Supreme Court .
The incident started as a show of law enforcement power against Murphy. “I didn’t want him walking down my highway,” the officer later explained.
Instead of doing a quick safety check and letting Murphy go, the officer called for backup and went looking for a crime. He came up empty. Murphy was not under the influence of alcohol or drugs. He was not trespassing, loitering, jaywalking, littering or resisting arrest. Still, the officer demanded that Murphy identify himself.
Exercising his First Amendment rights, Murphy declined to give his name and asked the officer the basis for detaining him. In response, the officer handcuffed Murphy and took him to jail, where a detention supervisor threatened on video to punch Murphy in the face for asking questions.
More than anything, Murphy wanted to know why he was there. The arresting officer initially failed to come up with justification, even after brainstorming with a colleague, who suggested calling a prosecutor to find a crime. Murphy spent two hours in jail before the police released him without a citation.
After Murphy sued the arresting officer, the government’s attorney found a reason to justify the arrest: Murphy had been walking on the right side of the highway rather than the left. This is illegal in Missouri, but rarely enforced.
Murphy’s case includes a simple First Amendment claim: People should be able to talk or remain silent without fear of government retribution. The 8th U.S. Circuit Court of Appeals ruled against Murphy in 2023, holding that probable cause for a crime defeats a retaliatory arrest claim — even if officers discover probable cause after the fact.
Unsatisfied, Murphy petitioned the Supreme Court to intervene and scored an important victory on Oct. 7. The court granted his petition, vacated the decision against him, and sent the case back to the 8th Circuit for reconsideration in light of Gonzalez v. Trevino .
Texas case also about free speech
This Supreme Court case, decided on June 20, was a First Amendment victory for retiree Sylvia Gonzalez . Officials in Castle Hills, Texas, jailed her in 2019 after she ran for City Council and got elected on a reform platform.
The two cases are different in many ways. Murphy was 20 and not widely known for his speech when the police locked him up. Gonzalez was 72 and recognized in her community as an outspoken critic of the city manager. Yet Murphy and Gonzalez both went to jail for protected speech.
Both times, local officials started with a target and went looking for a crime. And both times, they had to rely on obscure statutes they do not usually enforce.
The Castle Hills mayor, police chief and a private attorney searched for weeks. They eventually accused Gonzalez of a crime for putting a citizens’ petition — the same one she had helped organize — in her personal binder during a public meeting. Her political enemies called this “mishandling public records.”
County prosecutors saw through the scheming and refused to charge Gonzalez. But the trauma of spending a day in jail on a metal bench in an orange shirt, avoiding using a doorless bathroom, keeps Gonzalez up at night to this day. So, she fought back with a First Amendment lawsuit .
Just like with Murphy, the lower courts tossed her case. Her Supreme Court win means she can continue her fight. And now, so can Murphy. Our public interest law firm, the Institute for Justice, represents both of these individuals.
All they want is their day in court, which should be the minimum in the United States. Yet far too often, this does not happen. People in power punish their critics and then escape consequences using a web of legal doctrines that shield government employees from accountability.
Citizens are silenced once in the court of public opinion and again in the court of law. Yet the Supreme Court has now made clear — twice in a span of one year — that probable cause for a pretextual crime is not enough to let government officials off the hook for a retaliatory arrest.
Speech is not illegal, and victims of retaliation deserve to be heard.
Marie Miller is an attorney at the 501(c)(3) nonprofit Institute for Justice in Arlington, Virginia. She co-authored this with Daryl James, a writer with the institute.
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