High court takes 2nd Lozman case against Riviera
City arrested him for airing views it didn’t want to hear, he says.
In what U.S. Supreme Court watchers say may be a first, longtime Riviera Beach critic Fane Lozman on Monday learned he will get the chance to air another grievance against the city before the nation’s highest court.
Justices agreed to decide Lozman’s claims that the city retaliated against him by having him arrested for exercising his First Amendment rights. Oral arguments are expected in March.
The case is different from the previous one that won Lozman a trip to the hallowed halls of justice in Washington. In 2013, he successfully persuaded justices that the city illegally seized his floating home and had it destroyed.
Chief Justice John Roberts called it his favorite case of the term. Justices agreed that just because a home floats it doesn’t mean it’s a boat. Lozman’s floating home shouldn’t have been seized under centuries-old maritime laws, the court ruled.
In the case that will be heard next year, Lozman, a self-made millionaire and former U.S. Marine, will argue that Riviera officials had him arrested for expressing views they didn’t want to hear. A federal jury in 2014 rejected his allegations that the city retaliated against him.
Claiming the decision would have been different had jurors not been told the arrest nullified his retaliation claims, Lozman appealed. His briefs to the high court were supported by the First Amendment Foundation and the Institute for Justice, both of which called it an issue of great public
importance.
The organizations are interested in his case because other governments around the country have taken similar action to silence critics, Lozman said. “You should not be able to retaliate against people by making a bogus arrest,” he said.
The Palm Beach County State Attorney’s Office dropped charges of disorderly conduct and resisting arrest that Riviera Beach police filed against him after dragging him out of a city council meeting in 2006 — one of many he attended to accuse city officials of wrongdoing.
In addition to concerns that he is not alone, the case appears to be of interest to Supreme Court justices because appeals courts across the nation are split on the issue of whether an arrest bars a claim of retaliation. Had his lawsuit played out in a different part of the country where courts don’t believe an arrest bars First Amendment retaliation claims, the decision of the jury in South Florida may have been different, Lozman said. The divergent views among appellate courts paved the way for the
‘I’m just so grateful that the U.S. Supreme Court has allowed me to defend the First Amendment.’ Fane Lozman Longtime Riviera critic
high court to intervene.
“At this time in our nation’s history, when there’s been such an assault on the First Amendment, I’m just so grateful that the U.S. Supreme Court has allowed me to defend the First Amendment,” Lozman said. “It’s a special privilege we have as Americans.”
Attorneys representing Riviera Beach didn’t return a phone call for comment.
When a federal jury in Palm Beach County rejected Lozman’s claims, city officials declared the battle over. “It’s a vindication for the city,” then City Attorney Pamala Ryan said in a celebration, which now appears to have been premature. “No matter what happens in the future at least nine members of the community looked at all the facts and looked at everything that’s been done since Mr. Lozman started his reign of terror and said to the city, ‘You’ve done nothing wrong.’ ”
West Palm Beach attorney Ben Bedard, who represented the city, agreed. “I’m hoping he moves on with his life and leaves the city alone,” he said after the 2014 verdict.
Unlike during that trial, when Lozman represented himself, he will get some high-powered help when he appears before the Supreme Court. He will be represented by the Stanford Law School Supreme Court Litigation Clinic and Kerri Barsh, an attorney with the Miami law firm Greenberg Traurig.
Riviera Beach will also have some legal muscle of its own. In addition to Bedard, it will be represented by Washington attorney Shay Dvoretzky, a former law clerk to the late Supreme Court Justice Antonin Scalia who has appeared before the high court regularly in recent years.
While other plaintiffs have made more than one appearance before the Supreme Court, the respected SCOTUS blog said it typically has involved the same legal issue. Lozman may be the first to get invited back to argue a completely different kind of case, it wrote.