A&A: Stripped of First Amendment Rights By City Council

Q: I went to a city council meeting and a woman was being proposed for city office. I condemned her appointment, saying Martin Luther King Jr. would not have approved. I also condemned the homosexuals in the room. Christianity is often condemned by others with no results, but this time, the Mayor interrupted me and then summoned the police to escort me out of the chambers. The city is now considering filing a restraining order against me to prevent me from coming to City Hall at all. I would like to file a lawsuit against the city due to their violation of my First Amendment Rights.

A: Whether or not your First Amendment rights have been violated through your removal from the city council meeting following your remarks, as well as the ban on your future attendance at city council meetings, is necessarily fact specific. However, I can give you some background on how California’s open meeting law and the First Amendment operate in connection with the public’s right to speak at such meetings.

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 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).

In other words, although a legislative body may reasonably regulate the public comment period, including limiting the amount of time that each speaker is allotted during periods of public comment under Gov’t Code section 54954.3(b), it must ensure that the right of public comment is carried out, and may not prohibit public criticism of the legislative body’s policies or actions. Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1076 (2008).

The Brown Act only states that a member of the public shall have the opportunity to “directly address the legislative body on any item of interest to the public,” as opposed to providing a forum for a member of the public to address other members of the public.

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 v. City of Norwalk, 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 feel your First Amendment rights have been violated, you might consider finding an attorney to assist you.

Bryan Cave Leighton Paisner 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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