A&A: Video Tapes, Free Speech, and the Brown Act

Video Tapes, Free Speech, and the Brown Act

Q: To comply with the Brown Act, our City Council has separate Oral Communication periods; there are periods for Agenda Items, and Non-Agenda City Business. In our past election cycle during the 2-minute Non-Agenda Item Orals a video tape of a candidate was played. Video tapes are allowed to be used by speakers. The City Council is now considering banning any video ad for a City Council Candidate during a Council Meeting during Oral communications. Is this an infringement on Free Speech?

A: In general, the Brown Act attempts to balance the right to speak freely against the need of government agencies to conduct their business. Section 54954 of the Brown Act requires that every regular meeting of a legislative body provide an opportunity for members of the public to directly address the body on any item under the subject matter jurisdiction of the body, but the Act also allows a legislative body to adopt reasonable regulations to assist in processing comments from the public.  Accordingly, the body may establish procedures for public comment as well as specifying reasonable time limitations on particular topics or individual speakers.

A meeting of a government 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 staus quo.  By allowing only one viewpoint to be expressed, the policies foreclosed meaningful public debate on a particular subject.

The legislative body can take action against “disruptive speech,” but it cannot prevent speech with which it does not agree merely by labeling it disruptive.  In the context of city council meetings, the Ninth Circuit has explained that “[a] speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies.  The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner.  Indeed, such conduct may interfere with the rights of other speakers.”  White v. City of Norwalk, 900 F.2d 1421, 1426 (9th Cir. 1990).   A crucial point in this case is that it was not the content of the speaker’s expression that made the behavior disruptive.

There is no requirement under the Brown Act that the body permit the use of video tapes during the public comment portion of regular meetings (and we have been unable to locate any California court case or other authority suggesting that such a requirement exists), but it sounds like in your situation there is a tradition of allowing the use of such tapes.  In the end, the answer to your question is highly fact-specific.

Where the use of videotapes has traditionally been allowed and is subsequently banned to prevent the showing of tapes containing certain content, that might considered a form of unconstitutional viewpoint discrimination.  On the other hand, to the extent the ban on videotapes is a response to disruptions to meetings caused by the use of such tapes in the past, and the ban is viewpoint-neutral, it might also be considered a reasonable time, place and manner restriction.

As you can see, the answer to your inquiry depends on the specific facts surrounding the City Council’s video ad restriction.  I hope the above information about impermissible content-based restrictions versus permissible time, place and manner restrictions is helpful to you.