When former U.S. Marine Corps officer Fane Lozman approached the lectern during a Riviera Beach City Council meeting to air his grievances as a citizen, he didn’t suspect he’d be hauled out in handcuffs.
Yet only a few seconds into his speech, that’s exactly what happened. His arrest triggered a First Amendment retaliation lawsuit now before the U.S. Supreme Court, which heard arguments last week. The case has important implications for citizen activists and journalists alike.
First, a little history. The City Council was sick of Lozman’s opposition to its plan to seize homes, including his, via eminent domain for private development. Lozman filed a lawsuit saying the council flouted an open government law that required more notice of the meeting approving the plan, which appeared to trigger an investigation of City Council members.
Angered by the investigation, council member Elizabeth Wade suggested action to “intimidate” Lozman and give him the “unwarranted heat we are feeling.” His arrest wasn’t the only action taken by the city. Using federal admiralty law, the city seized and sunk his houseboat. That case also wound up at the Supreme Court, and Lozman won.
One opportunity to apply heat arose at that meeting during the time allotted for public comment. Citizens could speak on any matter — even “read a nursery rhyme” — for up to three minutes. As Lozman began to speak about local public corruption, Wade tried to stop him. She then ordered the attending police officer to remove him and he was arrested.
The charges were ultimately dropped, but Lozman believed he was arrested for his opposition to the City Council’s actions, and thus had a strong claim of unlawful retaliation.
Yet there was a snag. Normally, to succeed on such a claim, a plaintiff must prove three elements: that he engaged in protected speech; the retaliation would normally chill free speech; and animus against the speech caused the retaliation.
But because Lozman was arrested, precedent in the 11th Circuit, which contains Florida, also required him to show the absence of probable cause for any criminal offense.
Although the trial judge spent days trying to decide which law Lozman could have violated, the jury found probable cause for Lozman’s arrest and ruled against him. After losing at the appellate court, Lozman appealed again to the Supreme Court. Now the court will decide whether probable cause for an arrest can stop such a retaliation claim.
For the sake of the freedoms of speech and press, the answer must be no. Instead, the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.
Granting probable cause such weight gives government a powerful tool to punish critics. With so many laws on the books, it is often easy to find probable cause for an arrest.
At oral arguments, Justice Elena Kagan noted there are vocal dissidents in every community who likely annoy local government officials. To retaliate, all government would need to do is “follow somebody around [until] they commit a traffic violation of a pretty minor kind…. That’s a pretty big problem,” Kagan remarked, “and it’s right here in kind of the facts of this case.” Chief Justice John Roberts described the video of Lozman’s arrest as “chilling.”
But the case has repercussions beyond a single critic. Imagine a group of pro-life and a group of pro-choice activists are protesting each other, sparking a riot. With such clear probable cause, a pro-life police chief could openly choose to arrest only the pro-choice rioters, simply because he disagrees with them. Probable cause should not empower law enforcement with such discretion.
Such viewpoint discrimination has already reared its ugly head beyond hypotheticals. As the National Press Photographers Association noted in its brief for Lozman, “Sheriff Joe Arpaio of Arizona arrested the publishers of Phoenix New Times for publishing articles” he viewed as “anti-Arpaio.” While the Ninth Circuit found no probable cause, Arpaio is hardly the first or last public official willing to strike back at his critics.
Of course, none of this is to say that probable cause should never defeat a First Amendment retaliation claim. But it shouldn’t disqualify it. Let’s hope the court recognizes this and sides with Lozman.
This post originally ran in Orlando Journal Sentinel on March 7th 2018.
