Swearing in public commenters at open meetings
Q: A local city council has adopted various new rules for members of the public wishing to address the council. The most concerning issue is:
“The presiding officer may require any person to be sworn as a witness before addressing the council on any subject.”
They go onto to state that anyone making false statements may be held to answer to criminal penalties. They have invoked this “swearing in” requirement on members of the public who have criticized their actions. I am unaware of any authority possessed by the council which would allow such a requirement.
A: The Brown Act provides 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 . . ..” Cal. Govt. Code Section 54954.3(a). The Brown Act also provides that “[t]he 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.” Cal. Govt. Code Section 54954.3(b). However, this provision must be read together with section 54953.3 of the Brown Act, which provides:
“[a] member of the public shall not be required, as a condition to attendance at a meeting of a legislative body . . . to register his or her name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance. If an attendance list, register, questionnaire, or other similar document is posted at or near the entrance to the room where the meeting is to be held, or is circulated to the persons present . . . it shall state clearly that the signing, registering, or completion of the document is voluntary, and that all persons may attend the meeting regardless of whether a person signs, registers, or completes the document.”
Under section, 54953.3, the swearing-in process you describe cannot be a prerequisite to attending a meeting. Although we are not aware of any authority applying section 54953.3 to the right to comment, it seems reasonable that because the right to comment is guaranteed by section 54954.3, and is not conditioned on any specific requirement, the prohibitions in section 54953.3 would also apply to the right to comment, and that right should not be conditioned on being sworn in.
In addition, a public meeting of a legislative body is considered to be a limited public forum for First Amendment purposes, and any restrictions on speech in a limited public forum must be viewpoint-neutral. To the extent the swearing-in requirement is only being applied to certain people based on the content of their speech, this would seem to run afoul of the First Amendment.