February 3, 2023










Case No. ______________




Plaintiff submits this Memorandum of Law in Support of his allegations in the Plaintiff’s Complaint. Accordingly, Plaintiff states thus:


  1. The Courts have set a high threshold for the limitation of the Freedom of Speech.

The very “purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969). (Emphasis added).

With respect to the alleged violations of free speech, the Court first must determine whether the speech in question was protected under the First Amendment as a matter of law. See Adler v. Lincoln Hous. Auth., 544 A.2d 576, 581 (R.I. 1988) (stating ‘”[t]he inquiry into the protected status of speech is one of law, not fact'”) (quoting Connick v. Myers, 461 U.S. 138, 148 n.7 (1983)). It is well settled that “[t]he freedom of speech protected by the First Amendment, though not absolute, ‘includes both the right to speak freely and the right to refrain from speaking at all.'” Steirer by Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 993 (3rd Cir. 1993) (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)) (Emphasis added). The reason is that “[a]t the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994) (Emphasis added); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (stating “one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say'”) (quoting Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion)). Thus, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Emphasis added).

The Rhode Island Supreme Court has also recognized “that each First Amendment case must be analyzed separately, based on the specific method of communication involved, and the values and the dangers implicated. Rhode Island Liquor Stores Ass’n v. Evening Call Pub. Co., 497 A.2d 331, 337 (R.I. 1985) (citing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 (1981) (plurality opinion); Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 748 (1978)). According to the Court, the determination of whether a regulation or ordinance abridges freedom of speech requires a three-part analysis. See Irish Subcommittee of the Rhode Island Heritage Commission v. Rhode Island Heritage Commission, 646 F.Supp. 347, 352 (D.R.I. 1986). The court must determine (1) whether the speech is protected under the First Amendment; (2) whether the restriction is content-based or content-neutral; and, (3) whether to apply strict scrutiny or whether a lesser standard is applicable. Id.

It is also worth noting that a trier of fact may infer an intent to inhibit First Amendment free speech rights from the conduct of the wrongdoer. See Fishman v. Clancy, 763 F.2d 485, 488 (1st Cir. 1985).

In light of the foregoing, the U.S. and Rhode Island Supreme Courts have set a high threshold for the limitation of the freedom of speech. Notably, the law gives individuals the discretion to have their opinions and decide the contents of their speeches. Individuals are therefore entitled to choose what to say and what not to say. 

  1. Lack of Probable Cause makes threats of arrest unlawful. 

A hostile motive may also be inferred form a showing of a lack of probable cause. Gore v. Gorman’s Inc., 143 F.Supp. 9, 14 (W.D.Mo. 1956).

“Probable cause to arrest ‘consist[s] of those facts and circumstances within the police officer’s knowledge at the moment of arrest and of which he had reasonably trustworthy information that would warrant a reasonably prudent person’s believing that a crime has been committed and that the prospective arrestee had committed it.'” State v. Aponte, 649 A.2d 219, 222 (R.I. 1994) (Emphasis added). (quoting State v. Usenia, 599 A.2d 1026, 1029 (R.I. 1991)). Thus, probable cause sufficient to support an information is established when, after taking into account relevant facts and circumstances, a reasonable person would believe that the charged crime occurred and was committed by Defendant

“Probable cause is determined under an objective standard.” U.S. v. Sanchez, 612 F.3d 1, 5 (1st Cir. 2010) (citing Gates, 462 U.S. at 230-31) (Emphasis added). Besides, recognizing probable cause requires a ‘”commonsense, practical question requiring examination of the ‘totality-of-the-circumstances”. State v. Correia, 707 A.2d 1245, 1249 (R.I. 1998) 

It follows, making threats of arrest without the evidence of facts and/or circumstances establishing probable cause, is unlawful. In the instant action, Defendant [ENTER NAME] made threats of arrest to Plaintiff without the presence of any fact and/or circumstance that showed Plaintiff had/was planning to commit a crime. Therefore, the threat(s) of arrest were unlawful for lack of probable cause, and therefore infringed on Plaintiff’s freedom of speech.


According to the U.S. Supreme Court, there is a two-step test for resolving a qualified immunity claim: the “constitutional inquiry” and the “qualified immunity inquiry.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The “constitutional inquiry” asks whether, when taken in the light most favorable to the non-moving party, the facts alleged show that the official’s conduct violated a constitutional right. Id. If so, a court turns to the “qualified immunity inquiry” and asks if the right was clearly established at the relevant time. Id. at 201–02, 121 S.Ct. 2151. This second inquiry “must be undertaken in light of the specific context of the case.” Id. at 201, 121 S.Ct. 2151.

Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A dispositive inquiry in the qualified immunity analysis “is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (citing Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). 

Accordingly, “government officials performing discretionary functions [are shielded] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) (Emphasis added).

The Rhode Island Supreme Court also applies the same identical analysis to a defense of qualified immunity employed by federal courts in the context of § 1983 claims. See Ensey v. Culhane 727 A.2d 687 (1999), at 691. 

It follows; therefore, police officers cannot rely on qualified immunity when their conduct violated constitutional rights, which conduct they would have reasonably known to violate the constitutional rights. In the instant action, Defendant [ENTER NAME] reasonably ought to have known that the threats he made to Plaintiff would violate/violated Plaintiff’s freedom of Speech. Besides, there was no fact/circumstance to show that Plaintiff had committed/was planning to commit a crime. Therefore, Defendants cannot rely on qualified immunity to absolve themselves of Plaintiff’s claims herein.   


WHEREFORE, the Plaintiff is entitled to damages from the Defendants, and he hereby prays that judgment be entered in his favor and against the Defendants and the following relief be issued:

  1. Declaratory relief;
  2. An injunction preventing Defendants from continuing the unlawful conduct alleged herein;
  3. Temporary Restraining Order/Preliminary Injunction;
  4. Actual damages for violation of Plaintiff’s rights as alleged herein;
  5. Interest as provided by law;
  6. An award of fees and costs;
  7. Such other relief as the Court deems just and proper. 


Respectfully submitted:



Dated: __________



 I hereby certify on the ____________day of _______________, 2021, that a true and correct copy of the foregoing Complaint were served by placing a copy in the United States Postal Service, with postage prepaid, addressed upon the following:





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