The US Supreme Court [official website] held [opinion, PDF] 8-1 Monday in Lozman v. Riviera Beach [docket] that it is possible an arrest could have violated the First Amendment when it was ordered in retaliation for earlier, protected speech, even in the presence of probable cause.

Lozman filed a lawsuit alleging that the city of Riviera, Florida, arrested him after speaking out at a public comments session in retaliation for two instances of First Amendment protected expressions: a then-pending lawsuit under the Florida Sunshine Act and his history of publicly criticizing city officials and policies.

The court decided narrowly. Lozman argued that the city itself retaliated against him pursuant to an “official municipal policy” of intimidation and that they formed a “premeditated plan to intimidate him in retaliation for his criticisms of city officials and his open-meetings lawsuit.” The court agreed that if this is true, Lozman would have a stronger case.

Justice Anthony Kennedy wrote:

It must be underscored that this Court has recognized the ‘right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.’… Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values.

The court remanded the case to the Court of Appeals to decide consistent with its opinion.