Supreme Court Revives Suit by Public-Meeting Speaker in Narrow Opinion

By Mark Walsh — June 18, 2018 3 min read
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The U.S. Supreme Court on Monday allowed a Florida man who was arrested while speaking at a city council meeting to pursue a civil rights lawsuit against the city, in a case spotlighting conflicts that have arisen at school board meetings as well.

Although the court ruled 8-1 for Fane Lozman, the breadth of the opinion was quite modest, and the justices sidestepped the main question they had taken up the case to decide: whether the existence of probable cause on the part of the police automatically bars a civil suit for First Amendment retaliation.

Educators were keeping an eye on the case because of at least one high-profile incident in which a speaker at a school board meeting was detained based on her speech. And a friend-of-the-court brief filed on Lozman’s side argued that school districts were increasingly imposing restrictions on public comment periods of school board meetings.

Writing for the court in Lozman v. City of Riviera Beach, Fla., Justice Anthony M. Kennedy said that probable cause does not bar Lozman from pursuing a retaliation claim under the unique circumstances of his case. The court reinstated his suit.

Lozman is a frequent critic of the Riviera Beach city council who had had multiple run-ins with the local government and had sued the city under Florida’s sunshine law. At a closed-door meeting in 2006, one council member spoke of trying to “intimidate” Lozman.

At a public meeting soon after that, Lozman was speaking during the public comment period. When Lozman referenced alleged corruption by the Palm Beach County government, the presiding council member sought to cut him off. When Lozman persisted, the council member summoned a police officer. Lozman refused to leave, and he was handcuffed and arrested.

A prosecutor refused to press charges of disorderly conduct against Lozman. But when Lozman filed his civil suit against the city for First Amendment retaliation, the trial judge instructed the jury that, for Lozman to prevail on this claim, he had to prove that the arresting officer was himself motivated by impermissible animus against Lozman’s protected speech and that the officer lacked probable cause to make the arrest. The jury ruled for the city.

The trial judge later concluded that there may have been probable cause to arrest Lozman for violating a Florida statute that prohibits interruptions or disturbances in schools, churches, or other public assemblies.

As Kennedy pointed out in his opinion, Lozman did not challenge the constitutionality of that statute, or the city council’s limitations on the subjects that speakers may address.

“Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one,” Kennedy said.

Lozman urged the court to apply a 1977 Supreme Court decision, Mount Healthy City Board of Education v. Doyle, which established a framework for analyzing First Amendment retaliation claims. Under the decision, a plaintiff alleging retaliation must show that he engaged in protected speech, that the defendant had retaliatory animus against that speech, and that the animus was a substantial factor in the challenged government action.

The city cited a different case that held that once there is probable cause for an arrest there can be no further claim that the arrest was retaliation for protected speech.

Kennedy said the question of which framework should apply to alleged retaliation claims stemming from arrests “is a determination that must await another case” because “Lozman’s claim is far afield from the typical typical retaliatory arrest claim.”

The court revived Lozman’s suit, but said that to prevail, he must prove the existence and enforcement of an official policy motivated by retaliation.

“An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer,” Kennedy said.

The justice stressed the importance of the First Amendment right to petition the government.

“It must be underscored that this court has recognized the right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights,” Kennedy said. “Lozman’s speech is high in the hierarchy of First Amendment values.”

Kennedy’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, and Neil M. Gorsuch.

Justice Clarence Thomas wrote a dissent that said he would have held that plaintiffs must prove a lack of probable cause as an element of a First Amendment retaliatory-arrest claim.

A version of this news article first appeared in The School Law Blog.