As a society that champions liberty, encouraging respectful and insightful discourse with our public officials is vital to protect our First Amendment values.
On Monday, June 18th, 2018, the United States Supreme Court ruled 8-1 in favor of a South Florida native for the second time in the last five years. The Court held that the presence of probable cause did not bar Fane Lozman’s First Amendment retaliatory arrest claim against the City of Rivera Beach.
Mr. Lozman was arrested for resisting arrest without violence and disorderly conduct during a November 2006 city council meeting. He refused to comply with a Councilperson’s order to cease his speech and to leave the podium he was speaking from; the state’s attorney later dismissed the charges. Afterwards, pursuant to a Section 1983 action, Mr. Lozman sued alleging that he was arrested in retaliation for his protected speech regarding his separate lawsuit over Rivera Beach’s city redevelopment plan and his other criticisms of the city.
Although the holding is narrowed to its particular facts, this case could create a new found hope for more plaintiffs pursuing First Amendment retaliatory arrest cases. There is still much to be decided in Mr. Lozman’s case, but we do see that evidence of probable cause to arrest an individual, one engaged in protected activity or expression, will not outright trump claims of retaliatory arrests against public officials.
As a society that champions liberty, encouraging respectful and insightful discourse with our public officials is vital to protect our First Amendment values. Indeed, Learned Hand, the enormously influential 20th century jurist, once said that, “Right conclusions are more likely to be drawn from a multitude of tongues than from [some] official truth.” A big question today is the extent to which we honor that declaration.
Local officials that abuse their power at the expense of our First Amendment liberties deteriorate the underlying meaning of Judge Hand’s declaration. In order to foster meaningful progress in our political system with our elected officials, we must continue to defend our expressive freedoms and speak truth to governmental abuse. As former Supreme Court Justice Robert H. Jackson said in West Virginia State Board v. Barnette, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics.”
Jacob Elberg serves as a summer law clerk in the Fort Lauderdale office of Thomas & LoCicero. As a rising third year law school student at the University of Kansas School of Law, Mr. Elberg formerly served as a Judicial Intern for The Honorable Freda L. Wolfson in the U.S. District Court for the District of New Jersey. He previously served as a Court Intern in the Douglas County District Court in Lawrence, Kansas. He graduated with a degree in Communication Studies with a minor in Journalism from Kansas University in 2016.