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A&A: Does the Brown Act Offer Recourse for Activists Barred from City Council Meeting?

Q:  I am part of a coalition of anti-illegal immigration activists. We have been protesting and attending City Council meetings because they appointed two illegal aliens to city commissions.

When we attend city council meetings they can get raucous. At a June meeting, our group and those activists supporting illegal immigration were sequestered in the city hall lobby and told that we would only be allowed admittance after the ceremonial presentations.

After those presentations were done, they only let a handful of activists up to the chambers and told the rest of us there were no more seats. We knew they were lying and we have a police office on video lying to us as we knew there were plenty of seats open.

I filed a complaint and the police department “investigated” and determined that the officer did nothing wrong.

Some of us eventually made it in, including myself, but other never made it in and were unable to speak during public comments.

I would like to see if there is some sort of recourse we can pursue against the city/police department for violating our rights to attend and participate in the meeting.

A: Limiting the number of people attending an open meeting potentially raises First Amendment concerns as well as issues under the Brown Act.  With respect to the First Amendment, whether the police action was constitutional—and particular legal actions that might be available to you based on a violation—requires a fact-intensive analysis that is beyond the scope of what we can offer through this service.  That said,
I can provide you with a few general principles regarding the First Amendment that are relevant to your inquiry.

As an initial matter, courts have found that the Brown Act’s public comment requirements create a “limited public forum” subject to First Amendment scrutiny. Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Consequently, if a restriction on attendance was imposed to dissuade the public from participating in the meeting so as to suppress a particular viewpoint, then the restriction arguably would be “content-based” and thus would only be valid upon a showing by the government “that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).   This is a very high standard and would be difficult to meet.

On the other hand, if the police restricted access to chambers not to dissuade public participation, but for some other “view-point neutral” reason, such as safety concerns, then the government may be able to prove the restriction was permissible under the Constitution, upon a showing that its restriction is “narrowly tailored to serve a significant government interest, and leave[s] open ample alternative channels of
communication.” Id.

Putting the First Amendment aside, the Brown Act’s open meeting requirements must also be met – i.e., all members of the public must be given an opportunity to:

(1) comment should they so choose; and

(2) observe the board’s deliberations.  However, the Brown Act does permit 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).

This website has  Find information about enforcing the Brown Act here here.

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.  No attorney-client relationship has been formed by way of this response.

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