Free Speech May Have Some Limits

By Karen Federman Henry

One of the fundamental tenets of the United States Constitution is the freedom of speech, which includes the ability to air our grievances about government activities.  Fane Lozman did just that in the City of Riviera Beach, Florida.  During the public participation portion of a meeting held by the City Council, Mr. Lozman began to discuss the recent arrest of a former county official.  After several requests to cease his remarks, the Council asked for the assistance of a police officer.  When Mr. Lozman continued to refuse to cooperate, he was arrested for disorderly conduct and resisting arrest.  Although later released, the posture of the case as it reached the Court required analysis of the principles related to lawful arrests in the context of the First Amendment prohibition against government retaliation when a person exercises his right to free speech.  The decision issued by the Court in June in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018), focused less on the public forum aspects of the case than on the probable cause for arrest and the possible retaliation of the Council.

Mr. Lozman conceded that there was probable cause for his arrest, and did not sue the arresting officer, who had no knowledge of Lozman’s prior comments or any motive to arrest him for his earlier expressive activities.  But Lozman did argue that the Council had formed a retaliatory policy to intimidate him, based on several councilmembers’ comments during a closed session.  As the facts developed, it appeared that, prior to the incident before the Court, Mr. Lozman had been a frequent critic of the Council and had even filed a lawsuit charging the Council with Open Meetings violations.  This background suggested not a little impatience when he appeared again before the Council and started criticizing a former official.

In some ways, the case illustrated the ability of a public entity to define the public forum.  No one questioned that ability of the Council to set time limits, to define the subjects on which speakers may comment, or to remove disruptive attendees or speakers—all of which are valid restrictions for a limited public forum.  Instead, the focus was on whether the City Council had established a policy to retaliate against Mr. Lozman.

Ultimately, the Court remanded the case for further proceedings.  The lower courts had determined that Mr. Lozman needed to prove the absence of probable cause for his arrest before he could show that it was retaliatory.  The Supreme Court, however, disagreed, and held that the absence of probable cause was not a prerequisite to Lozman presenting his case regarding a retaliatory policy to intimidate him.  The City, in turn, would have the opportunity to show that it would have had Lozman arrested based on violation of valid rules and not based on his prior comments.  The Court did not say whether Mr. Lozman would prevail on remand, so we may see this one again.