Justices Consider Free Speech Issues in FL Arrest

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U.S. Chief Justice John Roberts found the videotape “pretty chilling.” He was alluding to a 2006 meeting of the Riviera Beach, Fl., City Council and the arrest of Fane Lozman, a thorn in the side of council members, the Washington Post reports. Lozman was talking about civic corruption. A council member told him to stop, then called on a police officer to “carry him out.” In oral arguments Tuesday, Roberts said, “I mean, the fellow is up there for about 15 seconds, and the next thing he knows, he’s being led off in handcuffs, speaking in a very calm voice the whole time.” The court is considering an arrest that has turned into a major First Amendment test. “Now, the council may not have liked what he was talking about, but that doesn’t mean they get to cuff him and lead him out.”

Other justices also sympathized with Lozman, whose suit against the city for allegedly violating his free-speech rights with a retaliatory arrest was thrown out by a lower court. A jury found probable cause to arrest Lozman, although not for anything he was ever charged with, and he was never prosecuted. The problem in siding with Lozman, some justices said, is the effect it could have on police. Officers such as the one who handcuffed Lozman could be subject to lawsuits from people who claim it was their speech, rather than their actions, that prompted their arrests. Deputy U.S. Solicitor General Jeffrey Wall, supporting the city, called Lozman’s case unique. “In the real world, I think the far more serious danger is subjecting police departments across the country to claims that are easy to allege and difficult to disprove,” Wall said. Lozman’s lawyer, Stanford law Prof. Pamela Karlan, said in briefs that Lozman’s case was important for protesters, journalists and others who faced retaliation from governments they criticize.

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