With U.S. Supreme Court Chief Justice John Roberts saying it was “chilling” to watch a video of Fane Lozman being led out of a 2006 Riviera Beach city council meeting in handcuffs, the high court on Tuesday may have signalled a willingness to make sure Americans’ right to speak freely at public meetings isn’t compromised.
But while Roberts and other justices voiced dismay at the way Riviera officials dealt with one of its harshest critics, some also voiced reluctance to hamstring police officers who too often have to deal with unruly people who spew constitutionally-protected invectives — such as calling cops “pigs” — as part of a lawful arrest.
“In this case, there’s a very serious contention that people in elected office deliberately wanted to intimidate this person, and it seems to me that maybe in this case we should cordon off or box off what happened here from the ordinary conduct of police officers,” said Justice Anthony Kennedy.
The issue in the hour-long back-and-forth between justices and attorneys representing Lozman and Riviera Beach is how and where to draw the line between the actions of police officers and public officials.
If compromise isn’t possible, as an attorney representing the city claimed, “then the First Amendment is in trouble,” Kennedy said.
The hearing marked the second time in slightly more than five years that Lozman and Riviera Beach have faced off before the U.S. Supreme Court. Having already decided in 2013 that the city illegally used centuries-old maritime law to seize and destroy Lozman’s floating home, justices seemed familiar with the current players.
Lozman and city officials have been warring since the Miami-born self-made millionaire arrived at Riviera Beach’s marina in 2005 and began accusing city council members of corruption as he fought the city’s now scuttled multi-billion-dollar redevelopment plan.
Justices knew about a transcript of a closed-door meeting that city council members had to discuss a lawsuit Lozman filed against them. They knew that during that meeting City Councilman Liz Wade suggested intimidating Lozman to shut him up. They also knew that it was Wade who summoned a police officer to arrest Lozman in 2006 after he refused to quit talking at a city council meeting, even when he was told his comments about Palm Beach County and West Palm Beach officials arrested on corruption charges were irrelevant to the Riviera Beach meeting.
Even knowing that history, Roberts said the Riviera Beach Council’s strong measures were unnecessary.
“Well, regardless of what happened before or after, I found the video pretty chilling. 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,” Roberts said. “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.”
Justice Elena Kagan noted that Lozman isn’t the only irritating gadfly in the country who regularly attends city council meetings.
“There are lots of small towns in America and there are lots of cranks in those small towns. And there are lots of relationships that go sour between officials and some members of the populous,” Kagan said. “What about, you know, finding that guy every time he doesn’t quite stop when he makes a right on red and putting them in jail for a while?”
Lozman won a return trip to the high court after he lost a lawsuit he filed against the city, claiming the city had him arrested for exercising his First Amendment rights. A federal jury in West Palm Beach in 2014 found there was no retaliation.
But Lozman claims the system was unfairly stacked against him. In Florida, like most states, a person can’t win a First Amendment retaliation lawsuit if a police officer has probable cause to make an arrest, and in Lozman’s case, the Palm Beach County State Attorney’s Office ultimately dropped the disorderly conduct and resisting arrest without violence charges that Lozman had faced. But, during the trial over Lozman’s lawsuit, U.S. District Judge Daniel Hurley allowed the city to argue that a Riviera police officer had probable cause to arrest him on an obscure charge of disturbing a lawful assembly — a ruling Lozman claimed sunk his case.
In other parts of the country, probable cause alone isn’t enough. Stanford University law professor Pamela Karlan, who represents Lozman, urged the justices to use the standard embraced by the California-based 9th Circuit Court of Appeals. While a city can argue that it had probable cause, that is only one factor that is considered, she said of the standard that exists in many western states.
Shay Dvoretzky, who represented Riviera Beach before the Supreme Court, countered that such a standard would compromise police during even the most routine types of arrests — such as a bar fight.
“It is virtually impossible for police officers themselves in the bar kind of situation to disaggregate their own thought processes and understand whether … they carried out an arrest because of the content of somebody’s speech and their dislike for it, or because the content of somebody’s speech suggested belligerence and suggested a likelihood to continue to incite violence,” said Dvoretzky, who served as a law clerk to the late Justice Antonin Scalia.
Justices Kennedy and Stephen Breyer voiced the most sympathy for Dvoretzky’s views. But, both said, there is a vast difference between arresting someone at a public meeting and during a bar fight. “This situation is someone sitting calmly behind the desk in the middle of the meeting, not somebody out there in a bar or somebody worried about a real riot,” Breyer said.
Saying that the situation in Riviera Beach was unique, Acting U.S. Solicitor General Jeffrey Walls urged the justices to craft a narrow ruling. While agreeing that Lozman’s arrest was “troubling,” he said it was a “one-in-a-thousand” type case that shouldn’t be used to establish new law nationwide.
Kagan replied, however, that there was no turning back, now that the Supreme Court had agreed to hear the case. To rule in favor of Riviera Beach, she said could give a “green light” to leaders in other communities to arrest people who annoy them.
Chief Justice Roberts seemed to agree. “This is, you know, in the city council, during a time specifically set aside for citizens to talk about whatever the council is talking about and comment on it,” he said, underscoring that Lozman’s arrest came during a period in Riviera’s meeting that was set aside for the public to speak. “Is there any basis there for limiting it to the .. intensely free speech environment that we’re talking about?”
Outside the courthouse, Lozman said he was heartened by the justices’ comments. But he said he was dismayed more attention wasn’t given to briefs filed by more than 25 media organizations that claimed news reporters have often been arrested for covering events such as Black Lives Matter and Occupy Wall Street rallies to silence the views of the protesters.
When the Supreme Court rules in several months, Lozman said he suspects the court will issue a narrow ruling, likely affecting only those who speak at public meetings.
West Palm Beach attorney Benjamin Bedard, who attended the hearing with Riviera Beach City Attorney Andrew DeGraffenreidt and Assistant City Attorney Lina Busby, insisted Riviera never violated Lozman’s free-speech rights.
“In watching approximately 250 meetings on video over the course of this case, the city was liberal and supportive of Mr. Lozman’s First Amendment rights,” said Bedard, who successfully represented the city during the 2014 trial. “Unfortunately, (the high court) focused on one video.”