The amicus brief
On December 29, 2017, Media Coalition Foundation and several members of Media Coalition joined the amicus brief written by the National Press Photographers Association and signed by 26 media groups and companies.
The brief argues that if the mere existence of probable cause to make an arrest for any offense can preclude a civil suit alleging First Amendment retaliation, the government gains a powerful tool for suppressing news coverage of current events. The brief also provides numerous examples of how such arrests have been used to inhibit the media’s coverage of important public events. The question presented to the Supreme Court is: Does the existence of probable cause defeat a First Amendment retaliatory arrest claim as a matter of law?
On November 15, 2006, Fane Lozman, a resident of the City of Riviera Beach, attended a city council meeting. He was granted permission to speak during the open public comment portion of the meeting, however, when he mentioned “public corruption” in local government; a councilwoman told him to stop speaking. When Lozman continued to speak, she instructed a police officer to arrest Lozman.
After his arrest, Lozman was charged with disorderly conduct and resisting arrest. Both charges were quickly dismissed.
In February 2008, Lozman filed a 1983 lawsuit against the City in part on the grounds that he had been arrested in retaliation for his exercising his First Amendment rights by publicly criticizing the City of Riviera Beach government.
Lower court rulings and appeals
After numerous motions and appeals, the Eleventh Circuit held that to make a claim for retaliatory arrest, a plaintiff must show that: 1) he engaged in First Amendment-protected expression, 2) that the defendant harbored retaliatory animus against that expression, 3) that the animus was a substantial factor in the government decision the plaintiff is challenging and finally 4) that the challenged decision would not have been the same even absent the retaliatory animus.
In November 2014, in district court, a jury applying the Eleventh Circuit’s test found in favor of the City on all claims. The jury concluded that there was probable cause for petitioner’s arrest even if it was not the crime he was charged with after he was arrested.
In February 2017, Lozman appealed the jury’s decision to the Eleventh Circuit Court of Appeals, which rejected Lozman’s challenge to the district court’s instruction on retaliatory animus, holding that the video footage of Lozman’s conduct at the City Council meeting was reasonable evidence for the jury to find that “Officer Aguirre reasonably believed Lozman was committing, or was about to commit, the offense of Disturbing a Lawful Assembly.”
On November 17, 2017, the Supreme Court granted Lozman’s petition for certiorari on the question of whether a plaintiff is automatically barred from suing for retaliatory arrest if the arresting officer had probable cause to arrest the plaintiff for any crime, including one the officer hadn’t thought of at the time of arrest.