- By Jane Musgrave Palm Beach Post Staff Writer
When a Palm Beach County jury in 2014 cleared Riviera Beach council members of violating the free-speech rights of self-described “corruption fighter” Fane Lozman by having him arrested for berating them at a public meeting, city leaders celebrated.
“I hope Mr. Lozman takes from this that there was no retaliation,” said attorney Ben Bedard, who represented Riviera Beach in the month-long trial in U.S. District Court. “I’m hoping he moves on with his life and leaves the city alone.”
In retrospect, city leaders should have known better than to hope their longtime nemesis would quietly fade away.
On Tuesday, five years after the 56-year-old former U.S. Marine, commodities trader and self-made millionaire notched his first U.S. Supreme Court victory against the city, he will be back for round two.
Lozman — possibly the first person, other than hired lawyers, to win a return trip to the high court to contest two starkly different issues — acknowledges that the thorny First Amendment battle he is asking justices to decide is far more important than the one that took him to Washington in 2012 and that the Supreme Court decided in 2013.
Back then, he argued that the city illegally seized and destroyed his 60-foot, two-story home docked at the Riviera Beach marina by using centuries-old maritime laws. In the case, which Chief Justice John Roberts called his favorite of the term, the court agreed with Lozman, ruling that everything that floats is not a boat.
This time, Lozman claims that one of Americans’ most cherished rights — the ability to speak freely without fear of arrest — is at stake.
“If I lose this case, it will be a sad day for our democracy,” said Lozman, who made a fortune inventing software that tracks stock market volatility. “Our country will slide further into a police state, where municipalities and its elected leaders and public servants will be immunized from any penalties for retaliatory arrests.”
To shore up his weighty claim, he points out that First Amendment groups and civil libertarians are backing his efforts to make it easier for people to win civil lawsuits alleging that they were arrested because police or elected officials didn’t like their views. Claiming news reporters are increasingly targeted by police for arrest for simply doing their jobs, more than 25 media organizations also have joined Lozman’s appeal.
Constitutional lawyer Floyd Abrams, who helped the New York Times win the right to publish The Pentagon Papers over the objections of the Nixon Administration, has thrown his considerable legal weight behind Lozman and his legal team from Stanford University Law School.
“Arrests made in retaliation for the exercise of First Amendment rights are a particularly chilling form of governmental response to constitutionally protected but officially disfavored speech,” Abrams wrote on behalf of the Virginia-based Institute for Free Speech.
Riviera Beach, which has spent more than $1 million battling Lozman in court, has its own formidable backing.
Claiming the ability of police to do their jobs would be compromised if Lozman wins, Acting U.S. Solicitor General Jeffrey Wall has asked to address the court during Tuesday’s oral arguments. Organizations representing cities and counties and the attorneys general for 10 states and the District of Columbia are also supporting Riviera Beach, which is represented by attorney Shay Dvoretzky and two other former clerks for the late U.S. Supreme Court Justice Antonin Scalia.
“Adopting Fane Lozman’s contrary rule will have significant negative effects on state and local governments,” wrote attorneys representing the National Association of Counties, the National League of Cities and the U.S. Conference of Mayors.
“It will make it more difficult to maintain order and safety at local government meetings, public protests and demonstrations, and political rallies,” they continued. “Also … local governments, in addition to their officers, will face an increased likelihood of defending against meritless lawsuits based on lawful arrests.”
Those who all-too vividly remember the clashes the council had with Lozman after he moved his floating home to Riviera Beach in 2005 and began fighting the city’s now-scuttled multi-billion-dollar redevelopment plan say they are surprised the dispute has attracted such high-powered attention.
To Ann Iles, a Riviera Beach councilwoman when Lozman was arrested, the issue is simple: “I don’t think that just because you have a First Amendment right to speak that you have a right to attack people personally,” she said. “He would attack us, he would attack our staff. He was disruptive.”
During the 2014 trial, Bedard told jurors Lozman had attended 121 council meetings and spoken 296 times. “Does that sound like someone whose First Amendment rights are being impeded?” he asked.
But Lozman countered with a transcript of a closed meeting the City Council had convened to discuss his lawsuit. In it, council members discussed hiring a private investigator that one of them said “would help to intimidate” him.
That trial in federal court settled a 2008 First Amendment retaliation lawsuit Lozman filed against the city after he was led from the council chambers in handcuffs in 2006 when he refused to leave the podium, seconds after he began talking about recent arrests of a county commissioner and West Palm Beach city commissioner — subjects that Riviera council members declared irrelevant.
In the suit, Lozman alleged that city officials launched a campaign against him after he sued them to block the redevelopment plan by accusing them of violating the state’s open meeting laws. They demonized his dachshund, had him arrested and later destroyed his floating home, he claimed at trial.
Constitutional lawyer Bruce Rogow, a professor of law at Nova Southeastern University Law Center who has argued 11 cases before the Supreme Court, said petty disputes often create far-reaching law. He cited the 2007 “Bong Hits 4 Jesus” case in which the high court expanded the ability of educators to stifle students’ First Amendment rights.
Like the Bong Hits case, which involved a banner flown by an Alaskan student, Lozman’s case made it to the Supreme Court, in part, because of what is often described as the liberal 9th Circuit Court of Appeals, which handles cases in nine western states from its courthouse in San Francisco.
In those nine states, a First Amendment retaliation claim doesn’t turn solely on whether a police officer had probable cause to make an arrest. It is just one of several factors that are considered. The more conservative Atlanta-based 11th Circuit, which decides appeals from Florida, Georgia and Alabama, bars First Amendment retaliation lawsuits if cops can show they had probable cause to make an arrest. The different ways of handling such cases throughout the country set the stage for the issue to be decided by the Supreme Court.
Lozman argues that Riviera Beach simply manufactured a reason to arrest him. He was charged with disorderly conduct and resisting arrest without violence, but the charges were dropped by state prosecutors. In the 2014 civil trial in which Lozman alleged retaliation by the city, U.S. District Judge Daniel Hurley allowed the city to argue that Lozman violated an obscure law, disturbing a lawful assembly.
Lozman claims Hurley’s ruling sunk his case because as long as the city could claim it believed he had violated some law he couldn’t win his retaliation claim. Such a standard hurts anyone who wants to prove they were punished for expressing unpopular views and empowers elected officials and police to illegally curb the public’s First Amendment rights, Lozman said.
“They can always come up with some bogus little misdemeanor to argue that they had probable cause,” he said.
So-called “catch and release arrests” happen frequently, wrote attorneys for the National Press Photographers Association, the Associated Press, Dow Jones & Co. and more than two dozen media organizations. According to the U.S. Press Freedom Tracker, 32 reporters were arrested last year while covering news events, such as protests at President Trump’s inauguration. More than 90 were arrested while covering Occupy Wall Street protests in 2011 and 2012, the media attorneys wrote.
“Arrests such as these thwart the well-established First Amendment right to record police activity in public, which is a crucial function journalists must be able to perform in order to ensure that the police remain accountable to the public they serve,” the media attorneys wrote.
Attorneys for the First Amendment Foundation and the American Civil Liberties Union said average citizens are also regularly arrested without cause. Such arrests have dire consequences.
“Retaliatory arrests not only silence the individual in question, but also send the message to others in the community that expression of disfavored views may result in being taken into law enforcement custody,” attorneys for the two groups wrote.
However, attorneys for cities, counties and state governments argue that someone’s incendiary speech often alerts police or other public officials that a person is dangerous. Further, people often make derogatory comments about cops or society in general when faced with arrest. To allow them to then argue that they were arrested because of their words, not their actions, would have a chilling effects on police, the governments’ attorneys wrote.
“Officers frequently encounter intoxicated and verbally combative suspects, and they must make split-second decisions in volatile circumstances,” wrote Alaska Attorney General Jahna Lindemuth. “Exposing officers to retaliation claims for arrests that were supported by probable cause risks eroding their willingness to make lawful arrests required to protect public safety.”
Noting that it is rare for people to be ejected from public meetings, attorneys representing cities and counties said there are times when it is necessary. “Maintaining order at these meetings can unintentionally abridge speech, as where a citizen must be removed because he or she is causing a disturbance,” they wrote.
Abrams and some of the others who support Lozman suggest a compromise similar to that embraced by the 9th Circuit. While police or elected officials could be allowed to argue that they had probable cause to arrest someone, that would be only one of the factors that would be considered.
“If the presence of probable cause alone defeats the existence of a First Amendment retaliatory arrest claim under all circumstances, arrests rooted in an effort to stifle protected speech will become judicially unscrutinized and undisturbed throughout the nation,” Abrams wrote.
Like many other constitutional questions that come before the court, the eventual ruling could have far-reaching consequences, Rogow said. “It will set some precedent,” he said.
It could also affect Riviera Beach if the court overturns the jury verdict and orders a new trial. Lozman was seeking about $500,000 from the city, including the cost of his floating home. While he previously persuaded the U.S. Supreme Court that it was destroyed illegally, a federal judge ultimately decided it was worth only $7,500 — far less than the nearly $270,000 Lozman sought.
For now, however, Lozman says the battle isn’t about money. “At this time in our nation’s history, when there’s been such an assault on the First Amendment, I’m just so grateful that the U.S. Supreme Court has allowed me to defend the First Amendment,” he said. “It’s a special privilege we have as Americans.”