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Tuesday, Sep 25, 2018
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Column: Fane Lozman’s long fight to criticize Riviera Beach may go on, Supreme Court rules

Fane Lozman, a consummate citizen-critic of local government affairs, exercised his First Amendment right "to petition the government for a redress of grievances." The government in this case was the city of Riviera Beach.

He was led off in handcuffs within seconds of starting to speak during the public comment period of a city council meeting. Now nearly a dozen years later, the U.S. Supreme Court has allowed his First Amendment case stemming from the arrest to continue. His speech was stifled by the very government body he was criticizing, so the case carries national free-speech implications for citizens who do the same.

Lozmanís suit against Riviera Beach claims his arrest at the November 2006 meeting was trumped up ó that it was orchestrated by city council members during a closed-door meeting as part of premediated plan to retaliate against him for his anti-government views and for an earlier case he had filed against the city.

In brief, Lozman contends he was arrested simply because, as Justice Anthony Kennedy wrote Monday for an eight-member majority, he was "an outspoken critic of the cityís plan to use its eminent domain power to seize homes along the waterfront for private development."

YouTube has a video of Lozmanís arrest. Just search under "Fane Lozman arrest," or go to http://bit.ly/2t52fHS. Chief Justice John Roberts saw it and, during oral argument before the high court in February, expressed dismay.

"I found the video pretty chilling. I mean, the fellow is up there for about 15 seconds, and the next thing he knows, heís being led off in handcuffs, speaking in a very calm voice the whole time," Roberts said, addressing an attorney for Riviera Beach. The video shows council member Elizabeth Wade ordering a police officer to "carry him out" after Lozman failed to heed her request to stop speaking.

Lozman vs. City of Riviera Beach is a retaliatory arrest case. It pivots on whether Fane Lozman was arrested in retaliation for exercising two different First Amendment rights. One is the right of free speech and the other is the right "to petition the government for a redress of grievances."

This latter right, although sometimes overlooked, basically gives citizens the ability to complain to government officials about their actions and policies. As Justice Kennedy wrote in Mondayís opinion, the right to petition is "one of the most precious of the liberties safeguarded by the Bill of Rights."

The issue facing the Supreme Court in the case was very narrow. It was whether the independent existence of probable cause to arrest a person ó something required by the Fourth Amendment ó automatically kills a First Amendment-based retaliatory arrest like Lozmanís.

In other words, even if the city council really did adopt, as Lozman alleges, a plan to intimidate him that culminated in his arrest, should Lozmanís lawsuit nonetheless be tossed out because the officer at the meeting had probable cause to arrest him for disorderly conduct?

Both the trial court and the 11th U.S. Circuit Court of Appeals, which covers Florida, ruled for Riviera Beach. They found that probable cause existed to make the arrest and that, in turn, its effect was to end Fane Lozmanís case.

Before the U.S. Supreme Court, Lozman conceded there was probable cause for his arrest, but argued his lawsuit for retaliatory arrest should continue because of the underlying plan against him for exercising his First Amendment rights.

The Supreme Court, with a lone dissent filed by Justice Clarence Thomas, vacated the 11th Circuitís ruling. It held that "Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the city." The court did not rule on the underlying merits of the claim.

Lozmanís suit thus may proceed. The Supreme Court sent it back to the 11th Circuit.

Lozman now must prove, as Kennedy wrote, "objective evidence" of "the existence and enforcement of an official policy" and plan by the city council that was "motivated by retaliation" for him exercising his First Amendment rights of free speech and petition. Additionally, Kennedy told the 11th Circuit that it may want to consider if Riviera Beach has evidence that "it would have arrested Lozman regardless of any retaliatory animus ó for example, if Lozmanís conduct during prior city council meetings had also violated valid rules as to proper subjects of discussion, thus explaining his arrest here."

In brief, Lozman won a battle Monday, but the war over his First Amendment right to complain to local government officials goes on.

Clay Calvert is professor and director of the Marion B. Brechner First Amendment Project in the College of Journalism and Communications at the University of Florida in Gainesville. The project, along with Brechner Center for Freedom of Information, filed a friend-of-the-court brief with the Supreme Court on Lozmanís behalf.

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