Argument analysis: Justices weigh threats to free speech against constraints on local policing

About midway through Tuesday’s oral argument in Lozman v. City of Riviera Beach, Justice Elena Kagan provoked audience laughter with a remark to Shay Dvorertzky, the attorney for the city. She observed that Pamela Karlan, who represents plaintiff Fane Lozman, had had “some difficulty with hypotheticals” during her argument. “But you,” she told Dvoretzky,” might have some difficulty with the facts of your case.” More than just a laugh line, Kagan’s comment encapsulated two points around which several of the justices appeared to coalesce. First, it would be very troubling if jurisdictions could evade trial for colorable claims of retaliatory arrest for First-Amendment-protected-activity by doing what Riviera Beach did in this case: pointing to some probable cause for arrest years after the fact, after proffering and withdrawing several other possible bases for arrest. In other words, several of the justices appeared to agree that…

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