First Amendment victory is Florida man's second at Supreme Court - CBS News 8 - San Diego, CA News Station - KFMB Channel 8

First Amendment victory is Florida man's second at Supreme Court

Posted: Updated: Jun 18, 2018 9:29 AM
Florida resident Fane Lozman stands on the steps of the Supreme Court in February after the justices debated his free speech case. Florida resident Fane Lozman stands on the steps of the Supreme Court in February after the justices debated his free speech case.

WASHINGTON - A Florida man who won a Supreme Court decision about a floating home five years ago won again Monday on a more important subject: the First Amendment.

The high court ruled 8-1 that Fane Lozman can pursue his claim that the city of Riviera Beach retaliated against him when it arrested him more than a decade ago for disturbing a government meeting. Justice Anthony Kennedy wrote the decision; Justice Clarence Thomas dissented.

But the justices set a high bar for Lozman to win his case in lower courts: He may have to prove that city officials "formed a retaliatory policy" in a private meeting and had no other basis for arresting him.

Lozman has been a perpetual thorn in their side since 2006, when the city tried to use eminent domain to redevelop the marina where Lozman lived in a floating home. Ultimately in 2009, officials seized and destroyed the home by claiming it was a boat. Lozman won that Supreme Court case in 2013.

During the course of the battle, officials had him arrested at a City Council meeting when he refused to stop speaking about public corruption. Unfortunately for them, the incident was preserved on YouTube.

"I found the video pretty chilling," Chief Justice John Roberts said during oral argument.

Lozman, 56, claimed he was arrested out of retaliation for his actions against the city's redevelopment plan. The city claimed it had probable cause to arrest him - if not for disorderly conduct and resisting arrest, charges that later were dropped, then for disturbing a government meeting, a misdemeanor under Florida law.

His lawsuit attracted support from major media organizations and defenders of the First Amendment, who worried that a ruling against him could make it easier for police to arrest journalists covering protests.

At oral argument in February, nearly all the justices found little basis for Lozman's treatment. But they worried that a ruling in Lozman's favor could cause problems for police who make split-second decisions to arrest people who they believe are committing more serious crimes.

Jeffrey Wall, the Trump administration's principal deputy solicitor general, warned the justices that a ruling for Lozman could implicate some of the 10 to 11 million arrests made each year by police who "aren't lawyers. They arrest based on conduct."

But Pamela Karlan, co-director of Stanford Law School's Supreme Court Litigation Clinic, said approving Lozman's arrest would allow "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."

In his ruling, Kennedy agreed that police "need the safe harbor of probable cause in the First Amendment context to be able to do their jobs effectively." At the same time, he said, "there is a risk that some police officers may exploit the arrest power as a means of suppressing speech."

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