Q: I am the parent of a child attending a public charter school. About a year ago when transparency appeared to be an issue, parents started to videotape school board meetings. Currently two parents videotape the board meetings using handheld cameras. No disturbance is made. Tapes are not edited and are posted on a Facebook page that is open to all.
At a recent board meeting, the CEO of the corporation that operates the public charter school announced that in the future the school will video-stream the board meetings, and restrict any recordings by individuals so they could not be edited and posted on their own just as any public entity does.
I have emailed the Board of Directors and the CEO and asked that this item be placed on the next agenda and what law was the CEO referring to that he can enact these restrictions along with the public entities that does this. Our local public non charter school district records, televises and plays their meetings on local TV multiple times in the month.
We need to know what our rights are. We started to videotape because transparency was an issue. Can they restrict us legally?
A: It is troubling that an entity that receives public funds and operates charter schools open to members of the public would attempt to prohibit the videotaping of its meetings.
The Brown Act, California’s open meeting law, explicitly provides that “[a]ny person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings with an audio or video recorder or a still or motion picture camera in the absence of a reasonable finding by the legislative body of the local agency that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.” Gov’t Code Â§ 54953.5(a).
Thus, the question here is whether the corporation is a “legislative body” governed by the Brown Act.
Gov’t Code Â§ 54952 provides:
As used in this chapter, “legislative body” means:
* * *
(c) (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.
(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.
(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
Thus, the TVLC would be subject to the Brown Act if either (1) it was created by another body (i.e., the school board) subject to the Brown Act to exercise authority that may lawfully be delegated by that body to a private entity (i.e., operation of charter schools), or (2) it receives funds from a local agency subject to the Brown Act and at least one voting member of the TVLC’s governing body is a member of the legislative body of the local agency subject to the Brown Act who was appointed to that position by the legislative body of the local agency.
Even if TVLC meetings are not subject to the Brown Act, there is probably still a First Amendment angle with respect to recording, since it sounds like these meetings are open to the public and may have been held in a public place, and thus would be considered a “public forum.” 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 “designated public forums,” which are 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 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).
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) (“content-neutral” speech restrictions are those that are justified without reference to the content of the regulated speech). In other words, a high standard must be met before regulations may be imposed pertaining to taping.
It looks like the TVLC has its governing documents on its website, which should help you assess whether it is indeed covered by the Brown Act. If the Act applies, it seems the CEO would not have much justification for restricting taping of the meetings. And, as discussed, even if the Act doesn’t apply, the board would have to meet a high standard in order to restrict taping at meetings.
Bryan Cave 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.