A&A: Arrested for making public comments that “disturbed” council meeting

Q: I am a signatory of an initiative which qualified for the ballot, but which the city refused to forward to the county for inclusion on the ballot in violation of Elections Code. At the next city council meeting, during the public comment period, I was criticizing the council’s illegal refusal to forward the initiative and was arrested for “disturbing” the meeting. Low voice, no profanity. I need criminal defense.

A: You might be able to find a criminal defense attorney through one of the resources listed on the American Bar Association web site at http://www.abanet.org/legalservices/findlegalhelp/lris.cfm?id=CA. I have also included the following information to give you a First Amendment/open meetings perspective on the situation.

Whether or not your rights to speak at this meeting under both the First Amendment and the Brown Act were violated may turn on whether the officials were simply attempting to maintain order at the meeting, or whether you were arrested based on the content of your speech.

As background, California’s open meeting law, known as the Brown Act, requires 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.” Gov’t Code section 54954.3(a).

The scope of comment permitted at a regular meeting includes not only agenda items, but any item within the body’s jurisdiction that has not already been considered at a previous meeting where public comment was permitted. The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and 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.

In between these two extremes are “limited public forums,” or areas 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.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where 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). Meetings of public bodies typically fit into this “limited public forum” category.

The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).

The First Amendment also limits the ability of legislative bodies to restrict speech based on its content. In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45. Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

One caveat to this high standard are situations where the moderator may limit speech in order to maintain order at the meeting. In public meetings, “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited ones.” White, 900 F.2d 1421, 1425 (9th Cir. 1990).

However, this is balanced with the public body’s need to “be addressed and deal[] with its agenda. Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.” Id.

While the governmental body may not stop a speaker from speaking because the moderator disagrees with the viewpoint expressed, it may stop the speaker if his or her speech becomes irrelevant or repetitious. Id.

A speaker may also be stopped where he or she becomes “disruptive” in a manner that would not meet the test for “actual breach of the peace … or of ‘fighting words’ likely to provoke immediate combat.” Id.

Disruption may occur where the speaker speaks too long, is unduly repetitious, or extends discussion of irrelevancies so that the legislative body is prevented from accomplishing its business in a reasonably efficient manner. Id. at 1426

If you are interested in finding an attorney specializing in the First Amendment and the Brown Act to assist in your defense, you may consider using the FAC’s Lawyer Assistance Request Form: https://firstamendmentcoalition.org/lawyers-assistance-request-form/.

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