Limiting Public Testimonies to New Issues
Q: During a recent City Council meeting the board Chairman told the individuals coming forward that when they are giving their testimonies they are to limit their comments to issue other than what has already been brought up by previous testimonies.
My problem with this is that it appears to be limiting people’s testimonies. I see the practicality of have such a policy during these public quorums, but it does appear to be limiting their testimony unnecessarily.
A: As you may know, the Brown Act is California’s Open Meetings law, and contains provisions regarding the public’s right to speak at meetings of local agencies such as the County Board of Supervisors. With respect to public comment, the Brown Act provides that:
(a) Every 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, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.
(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.
(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
Cal Gov Code § 54954.3 (emphasis added).
In other words, at every regular meeting, the body must allow an opportunity for the public to speak, but it may adopt “reasonable” rules, including regulations “limiting the total amount of time allocated for public testimony on particular issues.”
On the other hand, a meeting of a legislative body is considered to be a limited public forum for First Amendment purposes, and as such, the body faces a substantial burden in justifying any content-based restrictions on speech of members of the public during the public comment portion of the meeting. Any limitations on content must be shown to be necessary to serve a compelling state interest, and must be narrowly tailored to achieve that goal. See, e.g., Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (S.D. Cal. 1997). The restrictions adopted by the body must be reasonable, must be viewpoint neutral, and must preserve the purposes of the body’s limited forum. In addition, the Act specifically provides that: “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Cal. Govt. Code Section 54954.3(c). A policy which attempts to suppress critical speech may be considered an unconstitutional content-based restriction. For example, the Leventhal court held that policies prohibiting members of the public from criticizing school district employees were unconstitutional because the policies promoted only one viewpoint — e.g. praising and maintaining the status quo. By allowing only one viewpoint to be expressed, the policies foreclosed meaningful public debate on a particular subject.
The critical question for your inquiry is whether the limitations placed on speakers not to repeat prior testimony is a reasonable regulation meant, for example, to limit the amount of time set for testimony, of it is a contest-based restriction on speech, which is likely impermissible. I find no cases directly on point, as most cases addressing an agency’s right to set “reasonable regulations” focus on the time limits available for public comment. In those cases, California courts have taken the position that agencies may exercise discretion as long as the regulations are not applied “unreasonably or arbitrarily.” Chaffee v. San Francisco Public Library Com., 134 Cal. App. 4th 109, 115 (2005). The Board may argue that the regulation at issue is applied even-handedly, and intended to function more administratively than substantively, by, for example, creating more time for different issues to be addressed and eliminating cumulative, repetitious testimony. Still, it would seem very difficult to apply the rule without subjectively considering the content of the speech, which could be problematic. It would not seem to always be clear when a new speaker is raising a new issue or not, and there would seem to be some room for using such a rule to minimize critical speech. Moreover, the regulation might be unreasonable to the extent that it would be useful for Board members to know that numerous people have the same or similar concerns about a particular issue.