Supreme Court Weighs Arrest of a Public Speaker at Government Meeting

By Mark Walsh — February 27, 2018 5 min read
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The U.S. Supreme Court on Tuesday took up a case stemming from the arrest of a public speaker at a city council meeting, casting a spotlight on conflicts during public comment periods that have increasingly bedeviled school boards as well.

Just last month, a Louisiana teacher was escorted out of a school board meeting and arrested after questioning a raise the superintendent had received. Video of the incident involving Vermilion Parish teacher Deyshia Hargrave went viral.

That incident was somewhat similar to that of the Florida man whose case is before the high court. Fane Lozman is a frequent critic of the Riviera Beach, Fla., 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 had spoken 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, and Lozman was handcuffed and arrested. (Lozman’s remarks begin at the 30-second mark of this video.)

“Why am I being arrested?” Lozman said. “I have a First Amendment right.”

He was charged with disorderly conduct and resisting arrest, but prosecutors dropped the charges. Lozman then sued the city alleging that officials had violated his First Amendment speech and petition rights by ordering a retaliatory arrest.

Lower courts held that Lozman met most elements of proving retaliatory action and that there was no probable cause for the charges Lozman had originally been charged with. But a trial court gave the city an opportunity to show that there were other laws for which there had been probable cause to arrest Lozman. A civil jury found that there was probable cause for the arrest on the basis of “disturbing a lawful assembly,” and it ruled against Lozman’s suit.

The U.S. Court of Appeals for the 11th Circuit, in Atlanta, affirmed, holding that the jury could have correctly concluded that a reasonable officer could have believed that Lozman was disrupting the meeting or was about to do so based on his refusal to comply with repeated requests to yield the floor.

Video ‘Pretty Chilling’

The Supreme Court took up the appeal in Lozman v. City of Riviera Beach, Fla. (Case No. 17-21) on Feb. 27. The justices were clearly sympathetic to Lozman’s claims, though they worried that a ruling that expanded municipal or police officer liability for retaliatory arrests might create problems.

“In a local government, there are people who become real sort of pains to local officials, and local officials want to retaliate against them, for all the various things they say,” Justice Elena Kagan told Shay Dvoretzky, the lawyer for the city of Riviera Beach. “I’m sure that there’s one in every town. And just the nature of our lives and the nature of our criminal statute books, there’s a lot to be arrested for.”

Justice Anthony M. Kennedy told Dvoretzky that his arguments against Lozman’s suit led him to fear that “the First Amendment is in trouble.”

“In this case, ... there is evidence that there was a predetermined plan to arrest somebody on account of his political speech in a political forum,” Kennedy said. “And it seems to me that that is a very serious First Amendment problem.”

Chief Justice John G. Roberts Jr. told Dvoretzky he was troubled by the video of the incident.

“Regardless of what happened before or after, I found the video pretty chilling,” Roberts said. “I mean, the fellow is up there for about 15 seconds, and the next thing he knows, he’s being led off in handcuffs, speaking in a very calm voice the whole time. Now the council may not have liked what he was talking about, but that doesn’t mean they get to cuff him and lead him out.”

Dvoretzky said “there was probable cause in that situation to arrest him for unlawful disturbance. He repeatedly failed to heed [the council leader’s] and [the police officer’s] directions to stay on topic.”

Pamela S. Karlan, a Stanford University law professor who argued for Lozman, said her side was simply asking the court to hold that the presence of probable cause not be “an absolute bar” to a civil rights suit “in cases where retaliation is proven.”

She said that if the government doesn’t like what a speaker has to say, “all they have to do is wait for you to violate any one of the rules that each of us probably violates every day, and they can arrest you and they can hold you for two days and they can strip-search you and then they can say to you have a good day.”

“And if that’s what the First Amendment means,” Karlan added, “then all of the protections that this court is giving don’t mean very much on the ground when you’re dealing with local governments.”

School Board Conflicts

One friend-of-the-court brief in the case drew particular attention to the issue of school board conflicts over public comments.

Frank D. LoMonte, the director of the Brechner Center for Freedom of Information at the University of Florida, co-wrote the brief in support of Lozman that says that if the Supreme Court holds that the existence of probable cause to make an arrest can defeat a First Amendment retaliation claim, “then the speech and petition rights of citizen-critics everywhere will be more easily quashed by government officials harboring nefarious, self-serving motives.”

LoMonte cited a 2017 report he wrote when he was executive director of the Student Press Law Center, discussing a variety of attempts by school boards to limit public comments.

“Though it’s a rarity when a school board speech escalates into an arrest, it’s increasingly commonplace for districts to impose restrictions on what members of the public may say during the open-microphone portion of board meetings,” LoMonte said in the 2017 report. (Kate Stoltzfus wrote about some incidents in Education Week Teacher’s Teaching Now blog.)

In the Deyshia Hargrave case in Louisiana, the arrested teacher’s charges were dropped, and the president of the Vermiliion Parish school board, Anthony Fontana, resigned about two weeks after the incident.

A decision by the Supreme Court in Lozman’s case is expected by late June.

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