In the case of Nieves v. Bartlett, Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight during a winter sports festival in Alaska for disorderly conduct and resisting arrest. After his release, Bartlett sued the officers claiming they had violated his First Amendment rights by arresting him as retaliation for refusing to speak with Officer Nieves earlier that evening. The Supreme Court ruled 6-3 in favor of Officers Nieves and Weight, establishing that plaintiffs making retaliatory arrest claims must generally prove not just that they were arrested because of their speech but also demonstrate absence of probable cause for their arrests. However, an exception could be made if they can present evidence showing otherwise similarly situated individuals who did not engage in protected speech were not arrested.

In the dissenting opinion for Nieves v. Bartlett, Justice Gorsuch argued that probable cause should not bar a retaliatory arrest claim because it could potentially allow law enforcement to abuse their power and suppress speech. He pointed out that the majority's decision would enable police officers to retaliate against individuals exercising their First Amendment rights as long as they can find a minor legal violation to justify an arrest, which he believed was contrary to the principles of free speech and equal treatment under law. Gorsuch also criticized the court's reliance on Hartman v. Moore (2006), noting significant differences between retaliatory prosecution and retaliary arrest cases, such as different actors making decisions about charges versus arrests.