Retaliatory arrests for exercising free speech

Retaliation for free speech

Free Speech

Last year, the United States Supreme Court issued its opinion in Lozman v. City of Riviera Beach. In its opinion, the Court addressed the interplay between lawful arrests and the use of government power to suppress free speech.

As the Court said, “an arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation.”

“At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.”

The facts in Lozman.

Lozman lived in the City of Riviera Beach on the Atlantic coast of Florida. He was an outspoken critic of the City’s plan to use its eminent domain powers to seize homes along the waterfront for private development. He also filed suit against the City, alleging violations of the open meetings laws.

During a closed-door session of the City Council, one member suggested that they use City resources to “intimidate” Lozman and others who had filed suit against the City. (Yes, they were dumb enough to put that word in the transcript of the session.) Other members agreed to follow that course of action.

Lozman gets arrested.

Five months after the closed-door session, the City Council invited comments from the public at a meeting. Lozman went to the podium and began to speak about a county government issue.

A council member instructed Lozman to stop, but he refused. The council member then asked for the assistance of a police officer. The officer again asked Lozman to leave, and again he refused.

At that point, Lozman was arrested and removed from the meeting. He was charged with disorderly conduct and resisting arrest. The State’s attorney decided there was probable cause for the arrest, but he nevertheless dropped the charges.

Lozman files suit.

Filing a lawsuit in court

Section 1983 suit

Thereafter, Lozman filed a Section 1983 lawsuit alleging that the City had harassed him in a number of ways for exercising his free speech rights. (You can read more about Section 1983 here.)

After a 19 day trial, the jury returned a verdict for the City on all of Lozman’s claims.

Lozman appeals.

On appeal, Lozman only sought reversal as to the City’s alleged retaliatory arrest at the meeting. Interestingly enough, Lozman admitted that there was probable cause for his arrest.

Even so, Lozman claimed that his arrest at the city council meeting violated the First Amendment’s guarantee of free speech because the arrest was ordered in retaliation for his earlier, protected speech. Specifically, he meant his open-meetings lawsuit and his prior public criticisms of city officials.

The question for the Supreme Court, then, was whether the existence of probable cause barred that First Amendment retaliation claim.

The Supreme Court says “no”.

In reaching its decision, the Supreme Court focused on two prior decisions, Mt. Healthy City Board of Education v. Doyle and Hartman v. Moore.

The facts of Mt. Healthy were these. A city board of education decided not to rehire an untenured school teacher after a series of incidents indicating unprofessional demeanor. One of the incidents was a telephone call the teacher made to a local radio station to report on a new school policy.

The Supreme Court accepted the proposition that what the teacher said on the telephone call was protected speech. The Court went on to hold, however, that since the other incidents, standing alone, would have justified the dismissal, relief could not be granted if the board could show that the discharge would have been ordered even without reference to the protected speech.

Put another way, even if retaliation might have been a substantial motive for the board’s action, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination.

Hartman involved a different situation. There, William Moore had engaged in an extensive lobbying and governmental relations campaign opposing a particular postal service policy. Moore was later prosecuted for violating federal statutes in the course of that lobbying.

After being acquitted, Moore filed suit against five postal inspectors, alleging that they had violated his First Amendment rights when they instigated his prosecution in retaliation for his free speech criticisms of the Postal Service.

In Hartman, the Supreme Court held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. If there was probable cause, the case ends.

On the other hand, if the plaintiff proves the absence of probable cause, then the Mt. Healthy test governs. Then, the plaintiff must show that the retaliation was a substantial or motivating factor behind the prosecution. If that showing is made, the defendant can prevail only by showing that the prosecution would have been initiated without respect to retaliation.

Mt. Healthy applies.

Ultimately, the Court decided to apply Mt. Healthy to Lozman’s claim. The Court said that 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.

“An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer.”

“An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation.”

“For these reasons, when retaliation against free speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress.”

The importance of Lozman’s speech.

The Supreme Court concluded its opinion by noting: “As a final matter, it must be underscored that this Court has recognized the right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.”

“Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values.”

Thus, when the government has an individual arrested as “political payback” for exercising free speech, a Section 1983 claim can arise even if there was probable cause for the arrest.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110