Patrick Doughty, et al. v. State Employees’ Association of New Hampshire, SEIU Local 1984, CTW, CLC

In 2018, this Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), holding states and unions compel speech and association by exacting agency fees from nonconsenting public-sector employees and thus violate the First Amendment. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2486 (2018). Petitioners are or were New Hampshire state employees who, before Janus, had agency fees exacted from them by the State and respondent State Employees’ Association of New Hampshire. After Janus, petitioners sued respondent seeking damages or restitution under 42 U.S.C. § 1983 for this violation of their First Amendment rights. The First Circuit affirmed a district court order dismissing petitioners’ complaint reasoning that their First Amendment claim could be analogized to the common-law torts of “abuse of process” and “malicious prosecution,” which require a plaintiff to prove “malice” or “lack of probable cause” to recover damages or restitution under § 1983. The question presented is: Does a First Amendment compelled speech and association claim for damages or restitution brought under 42 U.S.C. § 1983 require a plaintiff to prove malice or lack of probable cause?