Whether investigations—even when they lack probable cause—are so categorically different from other retaliatory acts that they cannot be the basis for retaliation claims

QUESTION PRESENTED The circuits have split over whether to allow First Amendment claims for retaliatory investigations. The Ninth Circuit allows them. The Fifth Circuit does not. The Seventh and Tenth Circuits used to allow them. The Third, Eleventh, and now Eighth Circuits say that the right to be free from retaliatory investigation is not clearly established, and thus do not allow them. This Court’s footnote in Hartman v. Moore, 547 U.S. 250, 262 n.9 (2006), is driving much of the circuit confusion. At least five circuits, including the Seventh and Tenth, now believe that the footnote casts doubt on whether retaliatory investigations can exist as distinct constitutional violations. The question presented is: Whether investigations—even when they lack probable cause—are so categorically different from other retaliatory acts that they cannot be the basis for retaliation claims.