Florida Politicians in Apalachicola and Riviera Beach Stopped People From Speaking at Recent Meetings
By: Kevin Begos
Tags: First Amendment, Apalachicola, Politics, Free Speech, Florida

Florida Politicians in Apalachicola and Riviera Beach Stopped People From Speaking at Recent Meetings Kevin Begos Jun 17, 2019·6 min read

What’s the Law on That?

The sleepy Panhandle city of Apalachicola and south Florida’s Riviera Beach have little in common, but this month politicians in both used police to stop citizens from speaking at public meetings.

In Apalachicola a petite gallery owner in her 60s asked about conflicts of interest and was escorted from the podium on June 4, even though she had used just two minutes of the official five minute public comment period. The next day in Riviera Beach persistent gadfly, ex-Marine, and developer Fane Lozman was actually arrested, even though he’s won two U.S. Supreme Court cases against that city — one over a previous freedom of speech arrest.

So did politicians in the two cities violate First Amendment rights to free speech? Frank LoMonte, a lawyer and director of the Brechner Center for Freedom of Information at the University of Florida, shared these thoughts:

“The First Amendment applies vigorously to the public-comment period at government meetings, and a government agency cannot legally silence a commenter just because of speech critical of government agencies or officials,” LoMonte said. “An agency can enforce what are called “viewpoint-neutral” policies, such as holding people to time limits, but if the speaker is silenced for expressing critical or controversial opinions, there is a strong argument that the government has overreached and violated the speaker’s rights.”

There’s a Florida law about the right to speak, too. Florida Statue 286.0114, passed in 2013, requires “that a member of the public be given a reasonable opportunity to be heard by a board or commission.” It also says a “circuit court has jurisdiction to issue an injunction under certain circumstances,… (and) to assess reasonable attorney fees in actions filed against a board or commission.” Former state Sen. Joe Negron, a Republican from Stuart, sponsored the bill.

Yet despite numerous court rulings in support of free speech, LoMonte and a co-author said in a recent scholarly paper that many citizens around the nation “have found themselves gaveled down or even hauled away in handcuffs because of either what they say or how they say it.”

There’s no sign that anyone in Apalachicola (pop. 2296) plans a lawsuit over what happened to local gallery owner Leslie Wallace Coon, but many residents were shocked that police were involved at all. In a widely shared social media post Despina George, a native of the city, called it “one of the lowest points in the history of our city meetings.”

Apalachicola appears to have broken its own rules, since meeting agendas say near the top: “Once recognized please rise to the podium, state your name for the record, and adhere to the five minute time limit.”

Coon had spoken for only about a minute when Mayor Van Johnson started interrupting her. A video of the meeting by resident Amy Hersey captured these exchanges:

At about the 1:22 mark of Coon’s appearance, as audience members clapped and called out support for her, Mayor Johnson said “I’m going to expedite this meeting.” Coon replied “I believe I have 5 minutes” — the advertised limit — but Johnson replied “No you don’t.”

At the 1:45 mark Coon asked whether the city manager had conflicts of interest. Johnson interrupted and said Coon was “not going to hijack this meeting.” The police chief approached the podium seconds later, and Coon left without being arrested.

Coon told me in a phone call that she was not a threat to attack anyone, so involving the police was ridiculous. She feels critics get treated differently at meetings, though she’s not upset with the police chief, who was following orders.

I contacted Mayor Johnson, pointed out that Coon wasn’t allowed the advertised five minute comment period, and mentioned FS 286.0114. Johnson didn’t offer an apology or respond to my key questions, though he did allow Coon to repeat her conflict of interest question later in the meeting without interruption, about 15 minutes after police were first called.

City Commissioner Anita Grove responded to questions by saying “we certainly want people to be heard and to follow our policy.”

I’ve known both Johnson and Grove for 20 years, and have had good relations with them and other city commissioners. The mayor should understand free speech: his late mother, Azalee, was a respected local civil rights advocate who led peaceful protests when necessary.

So I’m puzzled that no one on the city commission has formally said “gee, we shouldn’t have had the police stop Leslie Coon, we won’t do that again, sorry.” Apologies can go a long way in a small town.

The Riviera Beach (pop. 34,674) free speech disputes show how such problems can linger. In 2018 Lozman won an 8–1 ruling from the U.S. Supreme Court — over his 2006 arrest at a city meeting. The case drew national media attention, and Chief Justice John Roberts said Lozman’s arrest was “pretty chilling.”

Note the case dragged on for 12 years, with huge legal fees for each party. I spoke to Lozman by phone, and he said “This is not unique to Riviera Beach. Municipalities around the country target public speakers who are critical of their policies.”

Yet court rulings seem crystal clear.

For example, in Lozman’s arrest case U.S. Supreme Court Justice Anthony Kennedy wrote that “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.’”

America’s Founding Fathers repeatedly stressed the importance of free speech. James Madison’s early draft of the First Amendment to the Constitution read “The people shall not be deprived or abridged of their right to speak, or to write, or to publish their sentiments.”

U.S. Supreme Court Justice Louis Brandeis wrote this in Whitney v. California (1927):

“Those who won our independence believed… that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile…that public discussion is a political duty.”

Brandeis added a legal point that is still relevant today: the so-called “clear and present danger” test. “To justify suppression of free speech there must be reasonable ground to fear that serious evil will result” from the speech.

Just making politicians uncomfortable doesn’t meet that standard. U.S. Supreme Court Justice William Brennan wrote in New York Times v. Sullivan (1964) that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

These days Apalachicola markets itself as a friendly and historic Old Florida town, and Coon is taking the high road. She “cannot stop laughing” at the absurdity of police being used to stop her from speaking. But Coon said other people might not be so forgiving. “If it happened to anybody but me, they’d be up in arms.”

Perhaps a city election in September will soothe local tensions. Mayor Johnson and two Apalachicola city commissioners previously announced plans to retire at the end the current term. (Despina George and Amy Hersey are among those who plan to run; Leslie Coon doesn’t).

Whoever wins in Apalachicola, Lozman said campaign promises about respecting free speech don’t always last. “Once they get in (office), if you don’t make public comments they like, they will do whatever they want to shut you up,” he said.

We can excuse him for being a bit cynical. The early June dispute in Riviera Beach was over whether Lozman could speak for three or nine minutes.

The Palm Beach Post reported that the mere sight of Lozman should inspire fear and caution, like an approaching hurricane. “So by now, you’d think that the words “In the event of Lozman: Do not arrest” are etched into the dais in front of each council member.”

Lozman insisted on nine minutes, since he was also representing two corporations and the council had previously allowed him more than three minutes on the same issue (a development battle). The politicians then took a half-hour recess to discuss their options.

“Isn’t it much easier to just let him say what he wants to say?” one council member wondered.

Apparently not. The Riviera Beach council had police arrest Lozman again.

—

Kevin Begos has been an Associated Press Correspondent and an MIT Knight Science Journalism Fellow. His work has appeared in The Washington Post, Scientific American, Smithsonian, The New York Times, and many newspapers and magazines. www.kevinbegos.com