A&A: The mayor refused to let me make a public comment without identifying myself

Q: Before filing a Brown Act violation against the mayor for denying me the opportunity to speak on an item before the city council because I refused to identify myself before making a public comment.  I would like to get an opinion from your organization on my complaint and the city’s response.

A: You are already aware that Government Code Section 54953.3 provides that members of the public may not be required to provide any information as a condition of attending a meeting that is subject to the Brown Act.

You are also aware that Government Code Section 54954.3 provides that members of the public must be permitted to address the legislative body on any item of interest to the public before or during the body’s consideration of that item, unless the item has already been considered at a previous meeting with an opportunity for comment, and subject to “reasonable regulations” to facilitate public comment, time limit per speaker to allow more people to speak.

While it is not absolutely clear that the Brown Act forbids requiring a member of the public to identify himself or herself or provide information in order to address the body, such a rule would certainly be consistent with the spirit of the Brown Act, as a contrary rule could inhibit robust debate.

With respect to interpreting these provisions of the Brown Act, note that Article I, section 3 of the California Constitution provides that “[a] statute, court rule, or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

In addition, the Supreme Court has recognized 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);, 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”).

One might argue that such a right to speak anonymously would be particularly important at city council meetings where the free exchange of viewpoints would seem to be especially critical.

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).

Very generally speaking, the more public a venue is, the less latitude the government has to restrict speech.  Also, generally speaking, restrictions that are content-neutral (i.e., not tied to a particular message) will generally be easier to uphold than restrictions based on a particular viewpoint, which are more often constitutionally suspect.

This general principle is codified to some extent in Section 54954.3 of the Brown Act, which 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.”  This particular provision might be particularly relevant where the spectator trying to speak at a meeting was a political opponent of the member of the body forbidding the spectator to speak.

In such circumstances, it might be reasonable to infer that the limitation on speech is not a content-neutral restriction but is instead a viewpoint-specific restriction on speech which could violate not only the Brown Act but also the First Amendment.

Theoretically, this could also be the case in a situation where a facially neutral policy was enforced in a way that discriminated against a particular viewpoint.  In other words, even if a rule requiring speaker cards was considered acceptable under the Brown Act and First Amendment, it might still be the case that enforcing a speaker-card policy against a particular person expected to voice an unpopular opinion while not enforcing the policy against others represented an unconstitutional viewpoint-specific speech restriction.

The same kind of reasoning might apply if, when a disfavored speaker came to speak, the body imposed an ad hoc rule limiting speech that was more restrictive than its stated policy.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.