The Supreme Court protects even the unruliest of government critics from retaliation

By The Times Editorial Board

Jun 20, 2018 | 4:05 AM 

 

 

Government officials who call the cops at public meetings to silence their critics can be held accountable — even if an arrest might be justified on other grounds. That was the reassuring conclusion of a ruling by the Supreme Court this week.

Monday’s 8-1 decision was a victory for Fane Lozman, the owner of a houseboat he kept at a marina owned by the city of Riviera Beach, Fla. As Justice Anthony Kennedy delicately put it in the majority opinion, Lozman had a “contentious” relationship with city officials. He filed a lawsuit alleging that an agreement the city made with developers violated Florida’s open-meeting law, and he testified more than 200 times, not always temperately, at City Council meetings.

In June of 2006, the council held a closed-door meeting in part to discuss Lozman’s lawsuit and, according to a transcript, one council member suggested that the city use its resources to “intimidate” Lozman and others who had filed suit. Later in the meeting, other members agreed on a “consensus” plan that Lozman said was designed to do just that. (The city maintained that the consensus was simply an agreement to invest resources in responding to lawsuits.)

Five months later, Lozman was speaking during the public comment portion of a City Council meeting when he mentioned the arrests of two “corrupt” politicians from other jurisdictions. The same council member who had talked about intimidating Lozman reacted by summoning a police officer, who arrested Lozman. According to the city, Lozman was arrested because he violated rules by discussing issues unrelated to the city and wouldn’t leave the podium. The state's attorney concluded that there was probable cause for the arrest, but decided to dismiss the charges of disorderly conduct and resisting arrest. 

 

Lozman then filed a federal civil rights claim arguing that his arrest was retaliation for the exercise of his 1st Amendment rights. He lost at the trial level after the judge instructed the jury that Lozman had to prove that the police officer lacked probable cause to arrest him. A federal appeals court ruled against him on essentially the same grounds.

In reversing that ruling, the Supreme Court recognized an important reality: that a particular arrest might be justified by probable cause and yet still be part of a conspiracy by a local government to retaliate against its critics (including through selective enforcement of the law). Kennedy noted that what Lozman was alleging was “a premeditated plan to intimidate him in retaliation for his criticisms of city officials and his open-meetings lawsuit.”

The court didn’t conclude that such a conspiracy had actually existed; it sent the case back down to the lower courts to consider that question. Still, this decision is significant in providing a check on local officials who might seek to use the police to silence their critics.