Written by:  Katie Davies

If you’ve ever attended a city council meeting, you’re likely to agree that the public comments on any given topic can range anywhere from the benign to the bizarre.  As a municipal law attorney who attends city council meetings all over the state, the public comments are my favorite part of any meeting because they can be both wildly unpredictable and effective. In fact, public participation at city council meetings is probably the purest form of democracy-in-action. Elected city officials are essentially forced to listen (without responding) to their constituents’ opinions, which can have a powerful effect on a community’s legislation, policies, and elections.

This is truer now than ever. Given the current volatile political climate in our country, people are frustrated and they are letting their lawmakers know it. Over the last year, we’ve seen countless examples play out in the news of people showing up at town-hall style meetings to chastise their elected officials for taking a particular position. Depending on your political leanings, you may have found this conduct to be heroic or downright uncivilized. So how far can, or should, the government let people go in voicing their frustrations at these types of meetings?

The U.S. Supreme Court is currently deciding this very issue. In Lozman v. City of Rivera Beach, Florida, (citation pending) the court is considering whether the existence of probable cause for disorderly conduct defeats a First Amendment retaliatory-arrest claim.

Fane Lozman lived in a floating house made of plywood in the Riviera Beach Marina in Florida. The city proposed to redevelop the private marina using eminent domain.  Lozman, disagreeing with this decision, became “an outspoken critic,” vocally criticizing the mayor and city council at council meetings. At a city council meeting Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. The local prosecutor dropped the charges on the belief that they could not successfully prosecute the case.

Lozeman sued the city claiming his arrest violated his First Amendment right to oppose the redevelopment plan. The city argued Lozman was arrested for violating the city’s rule that comments during the public comment period must relate to city business. Notice that the City actually pursued a different legal theory at trial than it did when it arrested Lozeman. Initially, the City arrested Lozman for disorderly conduct, but at trial the City argued that Lozeman had violated the rule that comments must pertain to city business.

Regardless, Lozman lost the jury trial and filed a motion for a new trial arguing that the evidence didn’t support the verdict.  The Eleventh Circuit Court of Appeals held that the jury’s finding of probable cause to arrest Lozman for disturbing a lawful assembly wasn’t against the great weight of evidence, and that, because the arrest was supported by probable cause, Lozman’s First Amendment retaliatory arrest claim failed.

The U.S. Supreme Court heard oral arguments on February 27, 2018. Lozeman insisted that the council’s chairperson took issue with the content of his speech, and not his actual conduct thereby making the arrest unlawful.  Lozeman was adamant that he “did maintain order” and that “[d]isorderly conduct relative to a public meeting is if you go beyond your three minutes, if you use profanity, if you’re screaming or yelling. I was doing none of those.” Lozman also pointed out that, “”If [the council member] didn’t want to listen to that content, she shouldn’t run for public office because the First Amendment protects comments that are critical and maybe comments people don’t like to hear.”

The city, on the other hand, argued that in the context of law enforcement, an open-ended right to sue for false arrest would sow chaos into law enforcement agencies’ ability to operate and would also be expensive for municipalities to defend. According to the city, if the court rules in favor of Lozman, the lower courts will be flooded with lawsuits by arrestees who claim the government was simply biased against them.

According to court watchers, the Court “seemed to express that they agreed Lozman’s arrest may have been unjustified and over the line, but they were having trouble clearly defining the line.”  While many of the justices were disturbed by the video, some were equally worried that a ruling in Lozman’s favor could open the flood gates for lawsuits against police who make more justifiable arrests, for example, during riots.

However, Justice Ruth Bader Ginsberg expressed grave concern for denying people like Lozman a remedy to their free-speech claims: “You are giving a green light to every vengeful city council in America to go after people when they demonstrate against abortion clinics, when they demonstrate about police, when they protest zoning decisions.”

While it’s difficult to predict how the Court will rule in this case, we should expect a narrow decision that is heavily driven by a fact-based analysis. As Justice Anthony Kennedy explained, the challenge is walling off legitimate police actions to “confine it in any way.”