Florida Man Two-Time Winner at Supreme Court (2)

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By Jordan S. Rubin

A Florida man is now firmly established in U.S. Supreme Court lore after prevailing in his second case as a private citizen.

Fane Lozman scored his latest victory June 18 in his free-speech fight against the City of Riviera Beach, Fla., where he said he was arrested for speaking out against public officials at an open meeting and for suing the city.

The justices, in an 8-1 decision authored by Anthony M. Kennedy, vacated a ruling by the U.S. Court of Appeals for the Eleventh Circuit that said probable cause for Lozman’s arrest barred his suit. The case was sent back for further consideration.

His first victory came in a 2013 decision when the Supreme Court said the city was wrong to seize and destroy the former Marine’s floating home.

There’s “no love lost” between Lozman and Riviera Beach, Justice Samuel A. Alito Jr., observed during oral argument in February about his long-running disputes with local officials.

Lozman’s lawyer Kerri Barsh called the latest decision “a vindication.”

The justices “recognized that core First Amendment values must be safeguarded against governmental retaliation,” Barsh of Greenberg Traurig in Miami told Bloomberg Law.

She served as Lozman’s co-counsel, along with Pamela S. Karlan of the Stanford Law School Supreme Court Litigation Clinic, who argued the case.

“In this time of increased civic engagement, the Supreme Court has reinforced the democratic tenet that freedom to criticize government is protected under the First Amendment,” Barsh said.

A lawyer for the city pointed to the limited nature of the decision.

“The court went out of its way to emphasize both the narrowness of its holding and the various arguments still open to the city on remand,” Benjamin L. Bedard of Roberts, Reynolds, Bedard & Tuzzio, PLLC in West Palm Beach, Fla., told Bloombeg Law.

“We now hope to persuade the Eleventh Circuit of those arguments,” Bedard said.

Speaking Out

In this latest case, Lozman argued his 2006 arrest was in retaliation for speaking out against public corruption and for suing the city.

Riviera Beach claimed he violated council rules by discussing issues unrelated to the city and then refusing to leave the podium.

In vacating the ruling from the Eleventh Circuit, Kennedy’s opinion said Lozman needn’t prove “the absence of probable cause to maintain a claim of retaliatory arrest against the city.”

He didn’t sue the officer who arrested him. Instead he sued the city over an official policy of intimidation against him, Kennedy said.

“The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim,” Kennedy wrote.

Important constitutional values are implicated here, Kennedy said. Lozman’s speech claim “is high in the hierarchy of First Amendment values,” he said.

Kennedy noted the ruling wouldn’t open the floodgates for claims against government officials, addressing a concern he raised at oral argument.

“This unique class of retaliatory arrest claims will require objective evidence of a policy motivated by retaliation to survive summary judgment,” Kennedy wrote.

He noted that Lozman had evidence against the city by way of a transcript of a closed-door city council meeting as well as a video recording of his arrest. Chief Justice John G. Roberts Jr. had called the footage “chilling” during oral argument.

Kennedy also emphasized that the decision doesn’t mean Lozman will win in the end.

“This is not to say, of course, that Lozman is ultimately entitled to relief or even a new trial,” Kennedy wrote.

Thomas, Lone Dissenter

Justice Clarence Thomas chastised his colleagues in a lone dissent for ducking the broader issue presented by the case and deciding a different one.

Instead of resolving the general question of whether probable cause defeats First Amendment retaliation claims, the majority “decides that probable cause should not defeat a ‘unique class of retaliatory arrest claims,’” Thomas complained.

“Instead of dreaming up our own rule, I would have answered the question presented and held that plaintiffs must plead and prove a lack of probable cause as an element of a First Amendment retaliatory arrest claim,” he said.

Kennedy’s opinion does nothing to resolve the split among the courts presented by the general question, Thomas said.

The case is Lozman v. City of Riviera Beach , U.S., No. 17-21, vacated and remanded 6/18/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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