Can a politician have you silenced for talking to them? That’s one of the cases the Supreme Court is taking up:
If a citizen speaks at a public meeting and says something a politician doesn’t like, can the citizen be arrested, cuffed, and carted off to the hoosegow?
Suppose that, during this fraught encounter, the citizen violates some law—even by accident, even one no one has ever heard of, even one dug up after the fact—does that make her arrest constitutional?
But the struggle was far from over. His original lawsuit against the city had alleged a violation of Florida’s open-meetings law. State authorities sent law enforcement agents to interview council members about those charges. The elected officials were so infuriated that, as one said on the record in a private 2006 meeting, they decided to “intimidate” Lozman and other critics “so that they can feel the same kind of unwarranted heat that we are feeling.” A few months later, Lozman went to the microphone during open comment time at a City Council meeting; but when he mentioned “public corruption” in Palm Beach County (where the city is located), the presiding council member ordered a police officer to arrest him.
He was charged with “disorderly conduct” and “resisting arrest without violence,” but the local prosecutor dropped the charges, saying in essence that no reasonable person would believe them. Lozman then brought a federal lawsuit against the city for “First Amendment retaliation.” A federal judge agreed that Lozman had “compelling” evidence that he’d been arrested as punishment for his protected speech. But the judge then threw out the case, reasoning that he actually could have been charged with the obscure state offense of “willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.”
What this meant, the court decided, was that the officer who arrested Lozman would have had “probable cause” (a reasonable basis to believe a crime had been committed) to arrest him if he had known about “assembly of people” statute and wanted to enforce it. The fact that the officer didn’t know about it was irrelevant—and so was the city’s unconstitutional motive. As long as an officer could have arrested Lozman for something, in other words, the retaliatory motive didn’t matter. The Eleventh Circuit affirmed: The existence of probable cause for any offense is an “absolute bar” to a suit for retaliatory arrest, it said.
Spoiler alert, they can (probably).
The ramifications of this case will be interesting. If the Supreme Court rules the intimidating tactics used by politicians are constitutional, then expressing dissenting opinions at public meetings will be a offense that can lead to arrest. It might not result in charges but it will give politicians throughout the entire country the ability to have annoyances removed and therefore create the illusion that their decisions are unanimously supported by the public.
The actions of the officer who arrested Lozman are also noteworthy. Lozman’s case was thrown out because the judge decided that an arrest is lawful so long as there is some law that the arrestee could be charged with (even if the officer is entirely ignorant of that law). With the mind boggling number of laws on the books, most of us are unknowingly in violation of some law at any given moment of the day. Under the judge’s criteria pretty much any arrest is a lawful arrest. Such power would effectively grant politicians to have anybody arrested at anytime without consequence.