Amicus Curiae Brief — Fane Lozman, Petitioner v. City of Riviera Beach, Florida

NO. 17-21

In the Supreme Court of the United States

FANE LOZMAN,

v.

Petitioner,

CITY OF RIVIERA BEACH, FLORIDA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE FOR MARION B. BRECHNER

FIRST AMENDMENT PROJECT AND BRECHNER

CENTER FOR FREEDOM OF INFORMATION

IN SUPPORT OF PETITIONER

FRANK LOMONTE

BRECHNER CENTER FOR

FREEDOM OF INFORMATION

3210 Weimer Hall

Gainesville, FL 32611

(352) 392-2273

flomonte@ufl.edu

CLAY CALVERT

Counsel of Record

MARION B. BRECHNER

FIRST AMENDMENT PROJECT

2060 Weimer Hall

Gainesville, FL 32611

(352) 273-1096

ccalvert@jou.ufl.edu

Counsel for Amici Curiae

December 27, 2017

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . i

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Core First Amendment Rights of Citizen-Critics

Speaking in Dissent Must be Protected from

Retaliatory Arrests and Viewpoint

Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. The Mt. Healthy Test Strikes the Appropriate

Balance Between First Amendment Interests

and Legitimate Arrests Without the Addition of

a Probable Cause Hurdle . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

TABLE OF AUTHORITIES

CASES

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) . . . . . . . . . . . . . . . . . . . . . 8, 9

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . 11

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . 11

Citizens United v. Federal Election Commission,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . . 5

Garrison v. Louisiana,

379 U.S. 64 (1964) . . . . . . . . . . . . . . . . . . . . . . . . 6

In re Donald J. Trump,

874 F.3d 948 (6th Cir. 2017) . . . . . . . . . . . . . . . 10

Lane v. Franks,

134 S. Ct. 2369 (2014) . . . . . . . . . . . . . . . . . . . . . 2

Matal v. Tam,

137 S. Ct. 1744 (2017) . . . . . . . . . . . . . . . . . . 5, 12

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) . . . . . . . . . . . . . . . . . . passim

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . 4, 9

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) . . . . . . . . . . . . . . . . . . . . . 8

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . 12

iii

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . 12

Snyder v. Phelps,

562 U.S. 443 (2011) . . . . . . . . . . . . . . . . . . . . . . . 6

Texas v. Johnson,

491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . 3

Utah v. Strieff,

136 S. Ct. 2056 (2016) . . . . . . . . . . . . . . . . . . . . . 3

Wood v. Moss,

134 S. Ct. 2056 (2014) . . . . . . . . . . . . . . . . . . . . . 5

CONSTITUTIONAL PROVISION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

STATUTE

Cal. Code Civ. Proc. § 425.16(b)(1) (2017) . . . . . . . 14

OTHER AUTHORITIES

Hailey Branson-Potts, Man Sues City After His

Arrest, L.A. Times, Dec. 3, 2017 . . . . . . . . . . . 3, 4

Clay Calvert, The First Amendment Right to Record

Images of Police in Public Places: The

Unreasonable Slipperiness of Reasonableness &

Possible Paths Forward, 3 Tex. A&M L. Rev. 131

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Clay Calvert, The Right to Record Images of Police

in Public Places: Should Intent, Viewpoint, or

Journalistic Status Determine First Amendment

Protection?, 64 UCLA L. Rev. Disc. 230 (2016) . . 6

iv

Bob Dunn, State Drops Disturbing-the-Peace

Charges Against Craig C. Gaetani, Berkshire

Eagle (Pittsfield, Mass.), Dec. 16, 2017 . . . . . . . 4

Katherine Grace Howard, You Have the Right to

Free Speech: Retaliatory Arrests and the Pretext

of Probable Cause, 51 Ga. L. Rev. 607 (2017) . . . 6

Frank LoMonte, Legal Analysis: Can School Boards

Restrict Public Comments?, Student Press Law

Center, Feb. 21, 2017, http://bit.ly/2pbdyPg . . . . 2

Alexander Meiklejohn, Free Speech and Its Relation

to Self-Government (1948) . . . . . . . . . . . . . . . . 7, 8

David Pierson, Trump is Sued for Blocking Some

Twitter Followers, L.A. Times, July 12, 2017 . . . 9

Robert D. Richards, Freedom’s Voice: The Perilous

Present and Uncertain Future of the First

Amendment (1998) . . . . . . . . . . . . . . . . . . . . . . . 13

Randolph A. Robinson II, Policing the Police:

Protecting Civil Remedies in Cases of Retaliatory

Arrest, 89 Denv. L. Rev. 499 (2012) . . . . . . . . . 13

Michael Shepherd, ACLU Sues LePage for Blocking

Facebook Critics, Bangor Daily News, Aug. 8,

2017, https://bangordailynews.com/2017/08/08/

politics/aclu-sues-lepage-for-blocking-facebookcritics/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ovetta Wiggins & Fenit Nirappil, Hogan Team

Busy Blocking Facebook Posts Since Trump

Order, Wash. Post, Feb. 9, 2017 . . . . . . . . . . . . 10

1

INTERESTS OF AMICI CURIAE1

The Marion B. Brechner First Amendment Project

(the “Project”) in the College of Journalism and

Communications at the University of Florida in

Gainesville is an endowed project dedicated to

contemporary issues affecting the First Amendment

freedoms of speech, press, thought, assembly and

petition. The Project pursues its mission through a

wide range of scholarly and educational activities

benefiting scholars, students and the public. The

Project’s scholarly and educational interest in filing

this amicus brief is to bring to the Court’s attention

important First Amendment principles on First

Amendment retaliation claims, political speech, speech

about matters of public concern, viewpoint

discrimination and the right to petition the government

for a redress of grievances. The Project is exercising the

academic freedom of its faculty to express their

scholarly views, and is not submitting this brief on

behalf of the University of Florida or the University of

Florida Board of Trustees.

The Brechner Center for Freedom of Information

(the “Brechner Center”) in the College of Journalism

and Communications at the University of Florida in

Gainesville exists to advance understanding,

appreciation and support for freedom of information in

1

Pursuant to Supreme Court Rule 37.6, counsel for amici curiae

states that no counsel for either party in this case authored this

brief in whole or in part, and no party or counsel for a party, or any

other person other than amici curiae or their counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief. The parties have consented to the filing

of this brief.

2

the state of Florida, the nation and the world. The

Center’s focus on encouraging public participation in

government decision-making is grounded in the belief

that a core value of the First Amendment is its

contribution to democratic governance. Since its

founding in 1977, the Brechner Center has served as a

source of academic research and expertise about the

law of gathering news, and the Center’s legal staff is

frequently called on to offer interpretive guidance

about the rights of journalists in Florida and

throughout the country. The Center is exercising the

academic freedom of its faculty to express their

scholarly views, and is not submitting this brief on

behalf of the University of Florida or the University of

Florida Board of Trustees.

Additionally, both the Project and the Center, as

Florida-headquartered organizations, have a special

interest in this case because it directly affects the First

Amendment speech and petition rights of a Floridian,

Fane Lozman.

SUMMARY OF ARGUMENT

This case is about much more than a retaliatory

arrest and probable cause. At its heart, it is about twin

fundamental First Amendment rights. The first is the

right of all citizens to speak out as citizen-critics of

government officials and to freely engage in speech

about matters of public concern. See Lane v. Franks,

134 S. Ct. 2369, 2377 (2014) (“Speech by citizens on

matters of public concern lies at the heart of the First

Amendment . . .”); Frank LoMonte, Legal Analysis: Can

School Boards Restrict Public Comments?, Student

Press Law Center, Feb. 21, 2017, http://bit.ly/2pbdyPg

(“The ability to speak directly to a government board –

3

a city council, a school board, college trustees – is

perhaps the purest and most basic form of citizen

participation.”)

The second is the right of all citizens to petition the

government for a redress of grievances with neither

fear nor trepidation of retaliation or retribution for

expressing their viewpoints, regardless of how

disagreeable or disturbing those stances may be to

government officials. See Texas v. Johnson, 491 U.S.

397, 414 (1989) (“If there is a bedrock principle

underlying the First Amendment, it is that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or

disagreeable.”).

If this Court holds that the existence of probable

cause to make an arrest defeats a First Amendment

retaliation claim, then the speech and petition rights of

citizen-critics everywhere will be more easily quashed

by government officials harboring nefarious, selfserving motives. Additionally, the chilling effect would

be immense on aspiring, would-be citizen-critics who

might steer well clear of controversy – and a degrading,

humiliating arrest that can haunt one’s life forever,

even if the charges are later dropped – by engaging in

self-censorship. See Utah v. Strieff, 136 S. Ct. 2056,

2070 (2016) (Sotomayor, J., dissenting) (“Even if you

are innocent, you will now join the 65 million

Americans with an arrest record and experience the

‘civil death’ of discrimination by employers, landlords,

and whoever else conducts a background check”). And,

unfortunately, arrests for speaking up and attempting

to speak up at city council meetings are not rare. See,

e.g., Hailey Branson-Potts, Man Sues City After His

4

Arrest, L.A. Times, Dec. 3, 2017, at B4 (describing the

arrest of Arthur Christopher Schaper at a June 2017

meeting of the Huntington Park, California, City

Council on suspicion of two misdemeanor counts of

disturbing a public meeting and disobeying a police

officer); Bob Dunn, State Drops Disturbing-the-Peace

Charges Against Craig C. Gaetani, Berkshire Eagle

(Pittsfield, Mass.), Dec. 16, 2017, at B10 (describing the

arrest of Craig C. Gaetani at a North Adams,

Massachusetts, “City Council meeting after he

allegedly caused a disturbance after being denied the

opportunity to air comments after the public comment

portion of that meeting had closed”).

Instead of adding a probable cause hurdle to the

citizen-critic’s retaliatory-arrest burden, the wellestablished, burden-shifting test articulated by this

Court in Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), has provided

a workable framework for four decades that strikes an

appropriate equilibrium between the competing

interests.

The Mt. Healthy standard comports with this

Court’s recognition of importance of protecting speech

critical of the government. As the Court explained more

than a half-century ago, there is a “privilege for

the citizen-critic of government. It is as much his duty

to criticize as it is the official’s duty to administer.”

New York Times Co. v. Sullivan, 376 U.S. 254, 282

(1964). Fane Lozman is the quintessential citizen-critic

of government. He was exercising his right and duty to

decry and condemn perceived government misconduct

and corruption when his arrest at a city council

meeting was orchestrated by the respondent.

5

Perhaps even more troubling, this case involves

viewpoint-based discrimination by the government

against the speech of a citizen-critic. Specifically, an

arrest occurred because a citizen’s views were critical

of, rather than favorable to, the government.

This

Court

“disfavors

viewpoint-based

discrimination.” Wood v. Moss, 134 S. Ct. 2056, 2061

(2014). As Justice Anthony Kennedy explained just last

term, viewpoint discrimination is “a form of speech

suppression so potent that it must be subject to

rigorous constitutional scrutiny.” Matal v. Tam, 137 S.

Ct. 1744, 1765 (2017) (Kennedy, J., concurring).

Had Fane Lozman been lauding or praising the

government, he would not have been arrested. But

because he was critical of the government, he was

arrested. As Justice Kennedy put it in Tam, this

“reflects the Government’s disapproval of a subset of

messages it finds offensive. This is the essence of

viewpoint discrimination.” Ibid. at 1766. Put

differently, only speech favorable to the government

was permitted in the political marketplace of ideas that

is a city council meeting. That smacks of dictatorship,

not democracy.

Additionally, this is a case about political speech,

centering on an arrest made at a city council meeting

once a citizen began to talk during the public comment

period about alleged local government corruption.

Political speech is at the core of the First Amendment.

As this Court recently observed, “Speech is an essential

mechanism of democracy, for it is the means to hold

officials accountable to the people.” Citizens United v.

Federal Election Commission, 558 U.S. 310, 339 (2010).

Simply put, respondent did not want petitioner to hold

6

government officials – itself, in other words –

accountable.

Alleged government corruption is, of course, a

matter of public concern. Speech about matters of

public concern, in turn, is perched at the top of the

hierarchy of First Amendment values, meriting special

protection. Snyder v. Phelps, 562 U.S. 443, 451-52

(2011). In fact, “speech concerning public affairs is

more than self-expression; it is the essence of selfgovernment.” Garrison v. Louisiana, 379 U.S. 64, 74-75

(1964).

Finally, this case raises First Amendment free press

concerns, not simply free speech and petition interests.

That’s because its outcome will directly affect

journalists who are arrested by police in retaliation for

covering protests about alleged police misconduct and

other issues. Recent years have seen journalists

arrested on charges such as trespass and interference

with police merely because law enforcement officials

either did not like or were afraid of the negative media

publicity. Katherine Grace Howard, You Have the

Right to Free Speech: Retaliatory Arrests and the

Pretext of Probable Cause, 51 Ga. L. Rev. 607, 625-26

(2017). Furthermore, common citizens, acting as

citizen-journalists and armed with nothing more than

smartphones, have suffered retaliatory actions,

including arrests and having their phones smashed,

simply for filming police in public places performing

their jobs. See generally Clay Calvert, The Right to

Record Images of Police in Public Places: Should Intent,

Viewpoint, or Journalistic Status Determine First

Amendment Protection?, 64 UCLA L. Rev. Disc. 230

(2016); Clay Calvert, The First Amendment Right to

7

Record Images of Police in Public Places: The

Unreasonable Slipperiness of Reasonableness &

Possible Paths Forward, 3 Tex. A&M L. Rev. 131

(2015). The rule this Court adopts here thus will

directly impact the ability of both professional

reporters and citizen-journalists to hold police

accountable for possible misconduct.

In summary, this case involves core political speech,

matters of public concern and, regrettably, viewpoint

discrimination in the marketplace of ideas exercised by

government officials that led to the retaliatory arrest of

a consummate citizen-critic. Requiring the citizen-critic

to prove the arrest was not premised upon probable

cause unnecessarily tilts the scales of justice against

the citizen-critic and in favor of the government. This

Court’s burden-shifting test from Mt. Healthy provides

a workable doctrinal standard that much more fairly

balances the interests of the citizen-critic and the

government.

ARGUMENT

I. Core First Amendment Rights of CitizenCritics Speaking in Dissent Must be Protected

from Retaliatory Arrests and Viewpoint

Discrimination

Petitioner Fane Lozman was arrested for exercising

his core First Amendment rights of speech and petition

during the public comment period at a city council

meeting.

Philosopher and educator Alexander

Meiklejohn famously used “the traditional American

town meeting” more than sixty-five years ago to

emphasize that the primary purpose of free speech “is

self-government.” Alexander Meiklejohn, Free Speech

8

and Its Relation to Self-Government 22-23 (1948). As

Meiklejohn explained, “Every man is free to come. They

meet as political equals. Each has a right and a duty to

think his own thoughts, to express them, and to listen

to the arguments of others. The basic principle is that

the freedom of speech shall be unabridged.” Ibid. at 22.

Respondent, however, had the petitioner ejected

from the meeting via arrest. Clearly respondent failed

to treat petitioner as a political equal in a nation

where, as Meiklejohn put it, “[t]here is only one group

– the self-governing people. Rulers and ruled are the

same individuals.” Ibid at 6. Instead, respondent

treated petitioner as a thorn in its side, ready to be

tweezed for removal.

Justice Kennedy observed last term that “[a]

fundamental principle of the First Amendment is that

all persons have access to places where they can speak

and listen, and then, after reflection, speak and listen

once more.” Packingham v. North Carolina, 137 S. Ct.

1730, 1735 (2017). Yet petitioner was denied access via

arrest by respondent to speak at precisely a place

where dissenting speech is most needed – a public

meeting of a governmental entity.

Put differently, respondent objected to petitioner’s

thoughts as expressed through speech. This is

decidedly dangerous. As Justice Kennedy explained

more than fifteen years ago, “First Amendment

freedoms are most in danger when the government

seeks to control thought or to justify its laws for that

impermissible end. The right to think is the beginning

of freedom, and speech must be protected from the

government because speech is the beginning of

thought.” Ashcroft v. Free Speech Coal., 535 U.S. 234,

9

253 (2002). The “impermissible end” in petitioner’s case

was to stifle his criticism and dissent of the

government.

It also is important to recognize that this Court’s

crucial case carving out special protection for the

citizen-critic of government, New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), hinged on an

advertisement that questioned the validity of the

arrests of Martin Luther King, Jr. The advertisement

asserted, in pertinent part, that “[a]gain and again the

Southern violators have answered Dr. King’s peaceful

protests with intimidation and violence. They have

bombed his home almost killing his wife and child.

They have assaulted his person. They have arrested

him seven times for ‘speeding,’ ‘loitering’ and similar

‘offenses.’” Ibid. at 257-58. As the scare quotes

surrounding the words speeding, loitering and offenses

make clear, arrests targeting individuals who oppose

governmental authorities can be easily conjured up,

regardless of merit. Indeed, this was precisely the case

with the arrest of petitioner Fane Lozman.

Furthermore, and in terms of the larger First

Amendment context and climate today, this case

arrives at the Court when citizen-critics of government

officials are under siege. President Donald J. Trump,

for example, routinely blocks from his Twitter account

individuals who criticize him, sparking First

Amendment free speech and petition concerns and, in

turn, a lawsuit. David Pierson, Trump is Sued for

Blocking Some Twitter Followers, L.A. Times, July 12,

2017, at C2. Sad, but his actions are not isolated.

For instance, Maryland Governor Larry Hogan has

blocked at least 450 people from posting on his

10

Facebook page. Ovetta Wiggins & Fenit Nirappil,

Hogan Team Busy Blocking Facebook Posts Since

Trump Order, Wash. Post, Feb. 9, 2017, at B1. Maine

Governor Paul LePage was sued in 2017 for “blocking

two critical commenters from his Facebook page and

deleting their comments.” Michael Shepherd, ACLU

Sues LePage for Blocking Facebook Critics, Bangor

Daily News, Aug. 8, 2017, https://bangordailynews.com/

2017/08/08/politics/aclu-sues-lepage-for-blockingfacebook-critics/. During a campaign rally in March

2016, then-candidate Trump yelled “Get ‘em out of

here” at protestors who, in turn, were assaulted by

several Trump supporters. In re Donald J. Trump, 874

F.3d 948, 950 (6th Cir. 2017).

The bottom line is that a decision by this Court

adding a probable-cause hurdle to the plaintiff’s burden

in a retaliatory-arrest case – especially given the

deference often paid to the decisions of law enforcement

officials – provides the government with much wider

and, in fact, unnecessary berth to engage in viewpointbased discrimination against core political speech with

which it disagrees. As the next part explains, the test

from Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), already

provides an appropriate, workable framework for

analyzing such cases.

II. The Mt. Healthy Test Strikes the Appropriate

Balance Between First Amendment Interests

and Legitimate Arrests Without the Addition

of a Probable Cause Hurdle

In Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977), this Court developed a burdenshifting framework for addressing First Amendment

11

retaliation claims within the context of employeremployee relationships. Under this test, plaintiffs

initially carry the burden of demonstrating that they

were exercising a constitutionally protected right and

that, in turn, the exercise of this right was a motivating

factor for a meaningfully adverse retaliatory action

taken by the government. Ibid. at 287. More simply

put, plaintiffs must show three elements in a First

Amendment retaliation case – speech, causation and

injury. In other words, their exercise of a protected

First Amendment right (speech) was a motivating

factor (causation) that resulted in harm (injury)

suffered at the hands of the government.

Clearing this threshold in the face of a government

motion to dismiss is not a simple matter for plaintiffs

today, particularly after this Court’s decisions in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009). Plaintiffs now

must plead something greater than just “labels and

conclusions” and something “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”

Iqbal, 556 U.S. at 678. In fact, “only a complaint that

states a plausible claim for relief survives a motion to

dismiss.” Ibid. at 679. To reach this crucial threshold of

plausibility – a level higher than mere conceivability –

plaintiffs must set forth “factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ibid. at

678.

If plaintiffs satisfy these steps of the Mt. Healthy

test, then the burden shifts to the government to show

“by a preponderance of the evidence that it would have

reached the same decision” against the plaintiffs “even

12

in the absence of the protected conduct.” Ibid. The

government is welcome here to raise the issue of

probable cause to make an arrest as evidence that it

would have arrested an individual regardless of her

exercising First Amendment protected rights. But the

existence of probable cause here under a Mt. Healthy

analysis is not outcome determinative or case killing.

The Mt. Healthy standard appropriately balances

the interests in retaliatory arrest cases. It initially

imposes burdens on the plaintiff. Only if the plaintiff

satisfies those hurdles does the burden eventually shift

to the government.

Furthermore, imposing any greater burden on

plaintiffs is counterintuitive, given that the actions of

the government respondent in this case involve

viewpoint-based discrimination targeting political

expression and speech about matters of public concern.

Statutes targeting political speech are content based

and thus are subject to the rigorous strict scrutiny

standard of judicial review. Reed v. Town of Gilbert,

135 S. Ct. 2218, 2226 (2015) (“Content-based laws –

those that target speech based on its communicative

content – are presumptively unconstitutional and may

be justified only if the government proves that they are

narrowly tailored to serve compelling state interests.”).

Viewpoint-based statutes – a subset of content-based

statutes – are even more reprehensible. Matal v. Tam,

137 S. Ct. 1744, 1766 (2017) (“A law found to

discriminate based on viewpoint is an ‘egregious form

of content discrimination,’ which is ‘presumptively

unconstitutional.’”) (Kennedy, J., concurring) (quoting

Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819, 829-30 (1995)). To ratchet up the burden on

13

plaintiffs in First Amendment retaliatory arrest cases

like this via a probable cause hurdle thus contradicts

the intensive, searching scrutiny to which government

actions like those engaged in here would be subjected

if they took the form of statutes. In other words, given

this Court’s special concerns with protecting political

speech and its longstanding doctrinal stance against

both content-based laws and viewpoint censorship,

adding an additional hurdle to plaintiffs’ burdens

beyond the Mt. Healthy test would be anomalous.

Finally, the Mt. Healthy framework substantially

tracks the formula deployed by most state statutes

designed to counteract the chilling effect of strategic

lawsuits against public participation (SLAPPs). At

bottom, a retaliatory arrest based on the exercise of the

First Amendment rights of free speech or petition is

tantamount to a criminal, rather than civil, SLAPP

suit. Its purpose is to squelch criticism on issues of

public concern. With a SLAPP suit, “[c]itizen-activists

lose because they become disenfranchised from the

democratic process by lawsuits.” Robert D. Richards,

Freedom’s Voice: The Perilous Present and Uncertain

Future of the First Amendment 26 (1998). Indeed, just

as the endgame of a SLAPP is to stifle First

Amendment rights, in a “claim for retaliatory arrest,

the injury occurs not because of the arrest itself, but by

the suppression of a constitutionally guaranteed right

through means of an arrest.” Randolph A. Robinson II,

Policing the Police: Protecting Civil Remedies in Cases

of Retaliatory Arrest, 89 Denv. L. Rev. 499, 514 (2012).

For instance, California’s anti-SLAPP statute allows

the victim of a SLAPP to make a speedy motion to

strike a complaint if, initially, the victim can

14

demonstrate that she was exercising the “right of

petition or free speech under the United States

Constitution or the California Constitution in

connection with a public issue.” Cal. Code Civ. Proc.

§ 425.16 (b) (1) (2017). If the target of a SLAPP

satisfies this hurdle, then the burden shifts to the

plaintiff – the SLAPPer, as it were – to establish “there

is a probability” that it will prevail on the underlying

claim. Ibid. This burden shifting is consistent with that

embraced in the Mt. Healthy test for retaliatory First

Amendment claims.

CONCLUSION

For all of these reasons, which strike at the heart of

the First Amendment rights of speech, petition and

press, and which affect core political expression and

speech about matters of public concern engaged in by

citizen-critics of government, amici curiae respectfully

request that this Court hold that Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S.

274 (1977) supplies the appropriate framework for

analyzing First Amendment retaliatory-arrest claims

and that the existence of probable cause does not defeat

a First Amendment retaliatory-arrest claim as a

matter of law.

15

Respectfully submitted.

FRANK LOMONTE

BRECHNER CENTER FOR

FREEDOM OF INFORMATION

3210 Weimer Hall

Gainesville, FL 32611

(352) 392-2273

flomonte@ufl.edu

CLAY CALVERT

Counsel of Record

MARION B. BRECHNER

FIRST AMENDMENT PROJECT

2060 Weimer Hall

Gainesville, FL 32611

(352) 273-1096

ccalvert@jou.ufl.edu

Counsel for Amici Curiae