RACHEL MARTIN, HOST:
A case before the Supreme Court today could parse when it's OK to put limits on free speech. It started when a man who went to a city council meeting in Florida complained about local politicians and got arrested for it. His name is Fane Lozman, and it's not his first trip to the nation's highest court. Five years ago, Lozman won when the court decided his houseboat counted as a house, not a boat. NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG, BYLINE: Back in 2006, Fane Lozman was not exactly a welcome sight for the Riviera Beach City Council. He'd managed to scuttle their plans to convert the local public marina into a private one, and state law enforcement officers were now investigating allegations of corruption. So on November 15, as Lozman put it...
FANE LOZMAN: They were not in a very good mood when they realized they had to abandon their entire redevelopment plan. They were throwing in the towel that night. And that's when I got up to make my public comments, and the chairperson was just livid looking at me.
TOTENBERG: The video of the whole episode can be viewed on YouTube.
(SOUNDBITE OF ARCHIVED RECORDING)
LOZMAN: You're probably aware that the U.S. attorney's office has arrested the second corrupt local politician. This time, it was former Palm Beach County Commissioner Tony Masilotti.
ELIZABETH WADE: Mr. Fane Lozman...
LOZMAN: ...Former commissioner...
WADE: Fane Lozman, you have a right to say what you want to say publicly, but you will not stand up and go through that kind of...
LOZMAN: Yes, I will.
WADE: No, you won't.
TOTENBERG: That's presiding Commissioner Elizabeth Wade, who summoned the policeman on duty to the podium and told Lozman to leave or be arrested.
(SOUNDBITE OF ARCHIVED RECORDING)
LOZMAN: I'm not walking outside. I haven't finished my comment.
WADE: Well, carry him out.
TOTENBERG: They didn't carry him out, but they did handcuff him at the podium, take him to the local lockup, and charge him with disorderly conduct and resisting arrest. The charges were subsequently dropped. But Lozman continued to fume, so he sued the city, alleging a number of retaliatory acts including his arrest at the council meeting. A jury sided with the city, and a federal appeals court upheld the verdict, concluding that there was probable cause to believe that Lozman was violating or was about to violate a Florida law that makes it a second-degree misdemeanor to disturb a lawful assembly. Lozman hotly disputes that characterization of his conduct.
LOZMAN: I did maintain order. Disorderly conduct relative to a public meeting is if you go beyond your three minutes, if you use profanity, if you're screaming or yelling. I was doing none of those.
TOTENBERG: He maintains that what the City Council chair objected to was the content of his speech.
LOZMAN: If she didn't want to listen to that content, she shouldn't run for public office because the First Amendment protects comments that are critical and maybe comments people don't like to hear.
TOTENBERG: And Lozman says this Supreme Court case is far more important than his last one.
LOZMAN: If I lose, then police and municipalities and the final policymakers who run the city - they're immunized. They can just come up with any bogus misdemeanor arrest to remove you from making your public comments.
TOTENBERG: The city declined NPR's request to provide anyone to discuss the case. But in written briefs filed in the Supreme Court, the City Council, backed by the Trump administration, contends that the policeman was justified in making the arrest even if Lozman's speech was perfectly legal. If you're having difficulty understanding that argument, well, here's one of the examples the city gives in its brief. A policeman sees someone illegally driving a van through the parking lot of a federal building with a sign that says, remember the children of Waco. The policeman might reasonably decide to arrest the driver rather than just issue a citation, thus buying time to determine whether the driver is a concerned citizen or another Oklahoma City bomber.
Lozman's lawyers, in their briefs, counter that the defendant here isn't the individual policeman, it's the city. The arrest didn't occur in the field, it occurred while Lozman was, quote, "calmly speaking during the public comment portion of a city council meeting," and that what he said, quote, "provided no basis for the arrest," close quote. A decision in the case is expected by summer. Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF SHARK QUEST'S "SIN THE MOON")
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