THE OPEN MIC, UNPLUGGED: CHALLENGES TO VIEWPOINT-BASED CONSTRAINTS ON PUBLIC-COMMENT PERIODS.

• Author: LoMonte, Frank D.

ABSTRACT

Perhaps the purest form of citizen political expression is addressing a government body directly during the public-comment period. Despite its salutary civic benefits, the public-comment period faces escalating threats, with local elected officials imposing rigid controls on speakers. Disturbingly, these rules sometimes are enforced via arrest. The U.S. Supreme Court recently confronted this scenario in Lozman v. City of Riviera Beach, involving the arrest of a citizen-critic who refused to stop using his city council's open-mic period to decry public corruption. While narrowly fact-specific, the Court's June 2018 resolution of the case reaffirms the importance of protecting speakers at government bodies against retaliation for disagreeable views. This Article surveys recent instances in which speakers addressing government bodies were silenced--at times, forcibly--and how courts address both facial and as-applied challenges to restrictions on public comment. The Article also examines the constitutionality of commercially available standard-form policies increasingly adopted by local governments to restrict "insulting" speech, "personal attacks," and other citizen criticism. It proposes taking the next logical step that the Lozman Court hesitated to take--namely, recognizing a framework to help courts assess all First Amendment retaliation claims by speakers punished for noncompliance with content- or viewpoint-based directives to refrain from speaking. Ultimately, the Article concludes that the simple burden-shifting analysis that the Court found applicable under Fane Lozman's unique set of facts--in which it is the speaker's burden to establish a prima facie case of a speech-punitive cause-and-effect--is in fact the appropriate standard for all such retaliation claims, so that the existence of an independent basis for arrest does not mechanistically defeat a speaker's claim where a retaliatory motive is proven.

CONTENTS INTRODUCTION I. POLITICAL SPEECH, STRICT SCRUTINY & THE FIRST AMENDMENT II. THE FIRST AMENDMENT AND GOVERNMENT MEETINGS A. Viewpoint Discrimination B. Defining the Forum III. EXAMINING THE PRIMARY JUSTIFICATIONS FOR RESTRICTING SPEECH A. Avoiding "Defamation" of Government Employees B. Enforcing Decorum and Civility 1. "Personal Attack" Policies Struck Down 2. "Personal Attack" Policies Upheld C. Relevancy and Repetition D. Policing Disruptive Behavior IV. THE VOID FOR VAGUENESS DOCTRINE AND LICENSING REGIMES ON SPEECH V. A CASE STUDY: MIAMI-DADE COUNTY, FLORIDA VI. THE CONSTITUTIONALITY OF PUNISHING CITIZEN COMMENTERS A. Prospective Bans B. Arrests 1. The Lozman Case Kicks the Constitutional Can Down the Road 2. The Nieves Case: Avoiding Avoidance CONCLUSION INTRODUCTION

"I found the video pretty chilling. I mean, the fellow is up there for about fifteen seconds, and the next thing he knows, he's being led off in ... handcuffs, speaking in a very calm voice the whole time." (1)

That's how Chief Justice John Roberts described a video (2) depicting Fane Lozman's arrest for speaking out at a 2006 meeting of the city council of Riviera Beach, Florida. (3) Lozman, "a Marine turned multimillionaire inventor turned thorn in the side of Riviera Beach officials," (4) relishes "rattling city cages." (5) For instance, the "indefatigable gadfly" (6) and "relentless opponent of public corruption" (7) scored a victory in 2013 before the nation's high court after Riviera Beach impermissibly classified Lozman's floating home as a "vessel" under a federal statute and destroyed it. (8)

But the images that Roberts found so "chilling" arose out of a different clash between Lozman and his hometown. This dispute involved Lozman's civil-rights claim under 42 U.S.C. [section] 1983 (9) that he was wrongfully arrested in retaliation for exercising his First Amendment (10) rights of speech and petition. (11)

Specifically, Lozman was arrested after council member Elizabeth Wade tried to stop him from talking about public corruption during a period set aside for public comments. (12) In his First Amendment challenge, Lozman argued that after he refused to quit speaking, Wade "summoned Riviera Beach Police Officer Francisco Aguirre, who was on duty at the meeting. Petitioner [Lozman] told Officer Aguirre that he was not finished speaking. Councilmember Wade then ordered the officer to carry him out. At that point petitioner was arrested, handcuffed, and removed from the meeting." (13)

Lozman, however, lost his retaliatory arrest case before a jury, and the U.S. Court of Appeals for the Eleventh Circuit issued an unpublished opinion in 2017 affirming the trial court's decision not to disturb the verdict. (14) In doing so, the Eleventh Circuit held that a finding of probable cause to arrest automatically defeats a false arrest claim brought under the First Amendment. (15) In November 2017, the Supreme Court granted Lozman's petition for a writ of certiorari. (16) It framed the issue before it simply: "Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?" (17)

Lozman's attorneys contended that while the existence of probable cause to make an arrest may be relevant in a First Amendment-based retaliatory arrest case "it is not dispositive as a matter of law." (18) As Pamela Karlan told the Court during oral argument on Lozman's behalf, "[w]e think the best rule is the rule we advocated for, which is that probable cause is relevant evidence but not always dispositive." (19)

In a June 2018 ruling remarkable for its narrowness, the Court held 8-1 (only Justice Clarence Thomas dissented) (20) that the conceded presence of probable cause for a misdemeanor arrest did not foreclose a First Amendment retaliation claim. (21) The Court confined its ruling to the facts before the Court and remanded the case to give Lozman an opportunity to establish that "the existence and enforcement of an official policy motivated by retaliation" was a but-for cause of his arrest. (22)

Although Lozman's case is the one that reached the Supreme Court, many other citizen commenters have found themselves gaveled down or even hauled away in handcuffs because of either what they say or how they say it. For instance, in February 2018, a woman was forcibly removed from the West Virginia House of Delegates while testifying about industry influence behind a bill lowering the standards to obtain a permit for oil and gas drilling. (23) The speaker, Lissa Lucas, was cautioned not to make "personal comments" about members of the House Judiciary Committee, but she persisted in reading a list of industry donations to committee members until her time expired and she was dragged away. (24)

National outrage followed a Louisiana teacher's January 2018 ejection from a school-board meeting for speaking up from the audience to question the board's approval of a large pay raise for the superintendent. (25) Amateur video of a deputy ushering her out of the meeting and then roughly handcuffing her in the hallway went viral with more than 1.7 million views on YouTube. (26)

In Scarborough, Maine, a 69-year-old man was arrested and charged with criminal trespass in November 2017 after refusing to cease his speech to a town council, ridiculing the town's courtship of an Amazon headquarters and questioning the town manager's professional background--remarks deemed "disrespectful" in violation of a municipal decorum policy. (27) A judge dismissed the trespass charge after the local prosecutor declined to pursue it. (28)

A former teacher and school-board candidate was removed (29) from a Brevard County, Florida, school board meeting and jailed in May 2016 after he refused to stop making accusations about misconduct by a school employee. (30) A school-board member said the speaker (who accused a teacher of showing a photograph of his genitals to students during a class presentation) violated a policy forbidding "talking about a teacher," which is a "personnel matter and not allowed at Board meetings due to possible slander." (31)

As these cases illustrate, government bodies with low tolerance for disagreeable speech are pushing--and sometimes crossing--constitutional boundaries in managing citizen speech. Clear standards are needed to minimize the risk of overzealous ejections and arrests.

In its 2018 term, the Court has the chance to clarify the broader constitutional question unresolved by Lozman: whether the existence of probable cause for any misdemeanor offense categorically defeats a speaker's First Amendment claim of retaliatory arrest. Although the case the Court accepted, Nieves v. Bartlett, (32) is (as discussed later) ill suited for broad pronouncements because of its unusual facts, it nevertheless offers the opportunity to establish some governing principles allowing speakers to pursue claims against ill-motivated government officials while simultaneously shielding rank-and-file police officers forced into spur-of-the-moment judgment calls.

Part I of this Article initially reviews the importance of political expression under the First Amendment and the strict scrutiny standard of review to which content-based restrictions on speech generally are subject. (33) Next, Part II examines the long-standing principle against viewpoint discrimination on speech, as well as the public forum doctrine. (34) Part III then considers the primary rationales for restricting speech at government meetings. (35) Part IV addresses the void for vagueness doctrine and prior restraint regimes imposed on speakers. (36) Part V then presents a brief case study of a government policy imposed on speakers at public meetings. (37) Next, Part VI turns to the heart of the Article, examining the constitutionality of punishing commenters. (38) Finally, this Article concludes by calling on the U.S. Supreme Court to offer clear guidance about when the expression of citizen-critics at public meetings can permissibly be squelched...