for which the arrest is made.” Ante, at 11. Finally, the protected speech that provoked the retaliatory policy must be “high in the hierarchy of First Amendment values.” Ante, at 12. Where all these features are present, the Court explains, there is not the same “causation problem” that exists for other retaliatory-arrest claims. Ante, at 11. I find it hard to believe that there will be many cases where this rule will even arguably apply, and even harder to believe that the plaintiffs in those cases will actually prove all five requirements. Not even Lozman’s case is a good fit, as the Court admits when it discusses the relevant considerations for remand. See ante, at 12–13. In my view, we should not have gone out of our way to fashion a complicated rule with no apparent applicability to this case or any other.
II
Turning to the question presented, I would hold that plaintiffs bringing a First Amendment retaliatory-arrest claim must plead and prove an absence of probable cause.[1] This Court has “repeatedly noted that 42 U.S.C. §1983 creates ‘“a species of tort liability.”’” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305 (1986) (footnote omitted). Accordingly, we “defin[e] the contours and prerequisites of a §1983 claim” by “look[ing] first to the common law of torts.” Manuel v. Joliet, 580 U.S. ___, ___ (2017) (slip op., at 12); see, e.g., Heck v. Humphrey, 512 U.S. 477, 484 (1994) (analogizing to the “common-law cause of action for malicious prosecution”); id., at 491
(Thomas, J., concurring) (emphasizing that the decision
- ↑ I am skeptical that 42 U.S.C. §1983 recognizes a claim for retaliatory arrests under the First Amendment. I adhere to the view that “no ‘intent-based’ constitutional tort would have been actionable under the §1983 that Congress enacted.” Crawford-El v. Britton, 523 U.S. 574, 612 (1998) (Scalia, J., dissenting). But because no party presses this argument, I assume that such claims are actionable under §1983.
