Q: An activist was arrested at a city council meeting for exceeding the time limit. It’s very loosely enforced by the mayor who allows some people to speak longer and others not to. The decision to target the activist was made earlier by the city attorney who told the police officer the next time this particular activist spoke past the time limit to ”stop” her rather than telling him just to stop violators in general?
Are they allowed to enforce a ”time, place and manner” restriction against one person in this manner?
A: Whether the activist’s right to speak at this meeting under both the First Amendment and the Brown Act was violated may turn on if the officials were simply attempting to maintain order at the meeting or whether the activist was arrested based on the content of her speech.
As background, California’s open meeting law, known as the Brown Act, requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a). The scope of comment permitted at a regular meeting includes not only agenda items, but any item within the body’s jurisdiction that has not already been considered at a previous meeting where public comment was permitted. The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c). To the extent a time limit were enforced to stifle criticism of the agency, then that would likely violate Section 54954.3(c). Of course, proving that a limit was enforced to stifle criticism could be very difficult. A legislative body’s direction to law enforcement to enforce a time limit against a particular individual in advance of that person’s having spoken might factor into the analysis of whether the body was, in essence, prohibiting public criticism or restricting speech on the basis of its viewpoint, as discussed below.
In addition, to Section 54954.3(c), the First Amendment provides some protection for expression in the context of a Brown Act meeting. The Brown Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996). If such forums are created expressly for the exchange of ideas, then a very high standard must be met before restricting speech and, in any case, restrictions may not be based on the viewpoint of the speaker. In public meetings, “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited ones.” White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). However, this is balanced with the public body’s need to “be addressed and deal[] with its agenda. Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.” Id. While the governmental body may not stop a speaker from speaking because the moderator disagrees with the viewpoint expressed, it may stop the speaker if his or her speech becomes irrelevant or repetitious. Id. A speaker may also be stopped where he or she becomes “disruptive” in a manner that would not meet the test for “actual breach of the peace … or of ‘fighting words’ likely to provoke immediate combat.” Id. Disruption may occur where the speaker speaks too long, is unduly repetitious, or extends discussion of irrelevancies so that the legislative body is prevented from accomplishing its business in a reasonably efficient manner. Id. at 1426.
Note that the Brown Act expressly provides for the “removal of individuals who are willfully interrupting [a] meeting.” Govt. Code section 54957.9. Whether exceeding a time limit constituted willfully interrupting a meeting would necessarily depend on the facts of the particular case. Making a before-the-fact determination that a particular individual would be willfully interrupting a meeting if she exceeded the public comment time limit, however, seems problematic.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.