A&A: Can ID Be Required to Make Public Comment?

Q: At City Council and Planning Commission meetings they have a sign next to the public-comment podium that says “Please state your name.”I think it might even ask for address.  I believe it is in violation of the Brown Act to require people to say their names. It is important in this community that people not have to state their name as an unfortunate individual who has done work for the city council has a blog in which he libels anyone who challenges the council. How can I get help in forcing the city council/planning council to stop acting as if stating one’s name is a requirement to public comment?

A: Your basic question is whether the city council and planning commission may require individuals to state their name before speaking during public comment period. Unfortunately, the Brown Act is silent on whether a public agency may require speakers to state their name during public comment. See Gov’t Code § 54954.3 (public testimony at regular meetings). Government Code section 54953.3 states that a member of the public cannot be required to register his or her name as a condition of attendance at a meeting, but does not state anything with respect to speaking.

However, the Supreme Court has recognized that there is a First Amendment right to speak anonymously. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002) (ordinance requiring those intending to engage in door-to-door advocacy of a political or religious cause to obtain and, upon demand, display permit, which contained one’s name, violated First Amendment protection accorded to anonymous pamphleteering or discourse); Thomas v. Collins, 323 U.S. 516, 539 (1945) (“As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly”). It seems that this right to speak anonymously at city council meetings would be especially true since such meetings are considered to be public fora, for which members of the public have broad constitutional rights.

Meetings of legislative bodies, such as city council meetings, are regarded under First Amendment framework as “limited public forums.” See White v. City of Norwalk, 900 F.2d 1421, 1425 (1990). Speech in a “public forum,” which includes public spaces such as sidewalks and parks that have traditionally been used for conduct protected by the First Amendment, can only be restricted if a high standard is met. (The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities.

Restrictions in non-public forums need only be reasonable and are generally upheld.) “Limited public forums” that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public — such as a city council or planning commission meeting — command the same high standard that applies to public forums, so long as the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Thus, while it is likely not unconstitutional for the city council ask public speakers to state their names and addresses, you may have an argument that requiring them to state that information in order to speak would violate First Amendment principles.