High Court Asked to Decide if City Council Unlawfully Silenced Critic

WASHINGTON (CN) – Attorneys for a man arrested for disrupting a Florida city council meeting pressed the Supreme Court on Tuesday to decide whether probable cause defeats claims of retaliatory arrest for First-Amendment-protected speech.

The case stems from the events that transpired at a meeting of the Riviera Beach, Florida city council in November 2006.

During the meeting Fane Lozman, a longtime critic of the council, rose to speak during the public-comments portion of the meeting and began talking about “corrupt local politicians.”

Members of the council sought to reign in his monologue, and when Lozman refused to stop talking, the city council had him

arrested and removed from the meeting.

In February 2008, Lozman sued Riviera Beach in federal court, claiming that his arrest constituted  retaliation for a then-pending lawsuit he’d filed against the city under Florida’s Sunshine Act, and for his history of publicly criticizing city officials and the policies they’ve enacted.

A jury returned a verdict for the city, and the district court denied his bid for a new trial. The 11th Circuit upheld that decision, paving the way for his Supreme Court appeal.

Tuesday’s argument marked the second time Lozman’s grievances with Riviera Beach officials have been heard by the high court.

In 2013, the Supreme Court concluded the city of Riviera Beach had wrongly invoked admiralty law in towing Lozman’s floating home from a local marina because the home did not qualify as a “vessel” under the law.

Much of the questioning on Tuesday focused not on the apparent longstanding animus between Lozman and members of the city council, but on the motivation of the arresting officer.

Shay Dvoretsky, the attorney for Rivieria Beach, argued it is “virtually impossible” for police officers to make arrests from a place of animus because their actions are based on the belief a person’s speech or action is inciting violence.

Justice Ruth Bader Ginsburg rebuffed him on this point, pointing out that the arresting officer was acting on the city council’s orders.

“Just because somebody calls the police doesn’t mean the police will actually act,” Dvoretsky said.

But Chief Justice Roberts seemed genuinely disturbed by what happened to Lozman, describing a video of the event as “pretty chilling.”

“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,” Roberts said.

“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,” the chief justice continued.

Ginsburg agreed, saying her review of the tape led her to believe Lozman’s arrest was motivated by the council member, not by a legitimate threat of disorderly conduct.

In response, Lozman’s attorney, Pamela Susan Karlan, said, “all that we ask is the court hold probable cause is not an absolute bar in cases where retaliation is proven.”

Any other decision, she said, would unleash “every vengeful city council in America” to go after citizens they have a beef with.


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