Q: Several months ago the city council majority changed the public comments procedure to make it more difficult for all that wanted to make comments to do so.
At a recent council meeting, they changed the ordinance regarding conduct during city council meetings, and more specifically the conduct while addressing the council. For example, if the mayor, in his personal view, decides your comments are disruptive because they are repetitive or that they are repeating the comments of another speaker, he can bar you from making any other comments during that council meeting. He may then have the speaker removed from the meeting. If the person refuses to leave or returns they may be charged with a misdemeanor offense.
I would appreciate your thoughts on the new ordinance and if you think it violates any first amendment rights.
A: As background, California’s open meeting law, known as the Brown Act applies to legislative bodies, 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 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).
In other words, although a legislative body may reasonably regulate the public comment period, including limiting the amount of time that each speaker is allocated during periods of public comment under Gov’t Code section 54954.3(b), it must ensure that the right of public comment is carried out, and may not prohibit public criticism of the legislative body’s policies or actions. Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1076 (2008).
Regarding public comment, public comment sessions have been found to be limited public forums, limited by the content restrictions set forth in the Brown Act. See White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).
Courts recognize that in situations such as the one you describe, i.e., a government meeting, “[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.
Generally, in a limited public forum, such as the City Council meeting, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983).
Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).
Where content-based restrictions are involved, a very high standard must be met before the government can restrict such speech. Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).
In the case of the Brown Act, this means that members of the public can be subject only to reasonable and content-neutral time, place and manner restrictions on their speech as long as their comments pertain to “any item of interest to the public that is within the subject matter jurisdiction of the council,” including agenda items.
However, members of the public may be required to confine their comments to that
subject matter. However all limitations must be viewpoint-neutral and ‘reasonable in light of the purpose served by the forum.’ See Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (1997);
Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (1996) (rejecting a rule prohibiting the inclusion of “charges or complaints against any employee of the district” in public comment).
It may be that the changes that the council is making to the public comment restrictions, and the power that the mayor will have to exclude individuals from the public comment period, are overly broad and, in practice, would apply to far more speech than is permissible under the First Amendment.
In addition, it seems that giving the mayor the ability to stop members of the public from speaking because he deems their comments as repetitive is a content-based restriction, given he would be limiting speech based on what a particular speaker is saying, versus, on the other hand, the number of minutes each speaker is permitted to speak.
Additionally, the mayor could apply the policy in an inconsistent way. There’s also the practical reality that one of the objectives of the public comment period is for the public to voice its opinion on a particular item before the council.
Even if 50 people address the council and voice the same opinion about a particular item, the fact that 50 people were motivated to appear at the meeting and use the allotted time during the public comment period to voice their opinion sends a stronger message to the council than if just one person stood up to speak.
Also, it is difficult to see how the mayor could necessarily know exactly what a particular speaker would say with respect to a particular item; even though numerous members of the public may be on
the same side of an issue, they may have different reasons for their support or opposition.
You may want to write to the council regarding the proposed changes, highlighting the ways in which they would offend the First Amendment.
If the changes are adopted, and the mayor uses his new power to curtail public comment, then you might consider bringing suit to enforce your (and other members of the public’s) rights under the Brown Act and First Amendment to speak at public meetings. You could do this through a lawsuit seeking a judicial
determination that a particular act by the council violated the Brown Act. Gov’t Code 54960. Under that course of action, nothing is nullified — a successful litigant simply ends up with a court order stating that the action at issue violated the brown Act (and that the legislative body should not do it again).
Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at http://ift.tt/1gBkg0E useful for proceeding.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.
One Comment
Ok – I agree the public can’t go attacking city employees. Could a member of the public say “Mayor Jones, I see that you voted yes on the such and such contract and I think you were wrong to do that. I have to wonder if you voted that way because they donated to your campaign?” Seems like the a city contract that Council must approve make a precise criticism of the Mayor permissible under the First Amendment.
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