MIAMI – June 18, 2018 – Greenberg Traurig, P.A. Miami Shareholder Kerri L. Barsh achieved victory for petitioner Fane Lozman when the Supreme Court of the United States today vacated an earlier decision of the United States Court of Appeals for the Eleventh Circuit in a case with implications for how governments must balance arrest powers with citizens’ constitutional rights of free speech.
Today’s ruling in Fane Lozman v. City of Riviera Beach, Florida, U.S. Supreme Court Docket No. 17- 21, vacates the lower appellate court’s decision adverse to Lozman and remands the case back to the 11th Circuit Court of Appeals, consistent with the opinion. Justice Anthony Kennedy wrote the majority opinion for the Court in an 8-to-1 decision, with Justice Clarence Thomas dissenting.
The Court recognized that “when retaliation against protected speech is elevated to the level of official policy,” then the presence of probable cause for Lozman’s arrest does not preclude his claim of retaliatory arrest under the First Amendment. This is Lozman’s second victory before the Supreme Court and, in both cases, Barsh has served as co-counsel.
"I am extremely pleased by the Supreme Court decision, which is a vindication for Mr. Lozman," said Barsh, who represented Lozman along with Pamela S. Karlan of the Stanford Law School Supreme Court Litigation Clinic. “The court recognized that core First Amendment values must be safeguarded against governmental retaliation. In this time of increased civic engagement, the Supreme Court has reinforced the democratic tenet that freedom to criticize public officials is protected under the First Amendment.”
Lozman sued under 42 U.S.C Section 1983 against the City of Riviera Beach, Florida in the United States District Court for the Southern District of Florida after he was arrested in 2006 at a Riviera Beach City Council meeting while speaking during the public comment period. He was initially charged with “disorderly conduct” and “resisting arrest without violence.” The state attorney dismissed both charges. Lozman claimed that his arrest was retaliatory and violated the First and Fourth Amendments.
The jury returned a verdict in favor of the city and Lozman appealed to the United States Court of Appeals for the Eleventh Circuit, which affirmed the district court’s decision. Lozman sought relief from the U.S. Supreme Court pursuant to a petition for writ of certiorari based on a conflict between the Eleventh Circuit and other Circuit Courts on whether the existence of probable cause defeats a claim of First Amendment retaliatory arrest as a matter of law. The Court granted Lozman’s petition on Nov. 13, 2017, and heard oral arguments on Feb. 27, 2018.
In addition to Karlan, Stanford Law School Supreme Court Clinic attorneys who worked on the case were Jeffrey L. Fisher and David T. Goldberg.
Barsh, who is co-chair of Greenberg Traurig’s Environmental Practice, represents clients in an array of environmental regulatory and litigation matters.
“The rights to petition and criticize government are protected by the Constitution, and are as relevant today as when they were first written into the Bill of Rights,” Barsh said. “This ruling underscores the importance of individuals’ rights to play a role in their government.”
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