A&A: Does City Council’s Rule Against Holding Up Signs At Meetings Violate the First Amendment?

Q: City council meeting attendees have been told they can’t hold up signs. The mayor told people not to talk or to take their conversations outside. If residents in the audience even whisper to one another, a police officer walks over and tells them to stop talking or leave. Recently a resident wrote to the city attorney that this violated the First Amendment rights.  The city attorney sent him a copy of the Municipal Code saying disrupting a council meeting is a misdemeanor and he would enforce it. 

Before the public comment portion of the meeting, the mayor reads an admonishment telling members of the public they cannot personally attack staff or council members in their public comments.  

A: The Brown Act requires that the public be afforded the right to speak at meetings where the Brown Act applies.  Cal. Gov. Code § 54954.3.  The Brown Act further allows legislative bodies to establish “reasonable” rules for public testimony including, but not limited to, limits on the amount of time allocated to each individual speaker or an individual issue.  Id.  In Constitutional terms, courts usually consider the public comment period of a Brown Act meeting to be a “limited public forum.”  See Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).  In general, governments may impose reasonable “time, place, and manner” regulations on speech in limited public forums, but restrictions must be “content neutral.”  Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

In general, these “reasonable” rules can include rules of decorum for ensuring city council meetings proceed in an orderly fashion.  Courts have upheld these ordinances against constitutional challenges.  In White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990), the Ninth Circuit upheld a city’s ordinance allowing removal of speakers who engaged in personal or abusive language—i.e. disorderly conduct—which “disrupts, disturbs, or otherwise impedes” the council meeting.  The court recognized that “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city,” but in the context of a city council proceeding, this interest must be balanced with the public body’s need to “be addressed and deal[] with its agenda.”  Id. at 1425.

However, note again that any restriction must be a content-neutral “time, place, and manner” restriction that does little more than ensure meetings can proceed in a timely and orderly fashion. The Brown Act also specifies that any restrictions created by the city council “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.” Cal. Gov. Code § 54954.3(c).

Whether or not the city is acting inappropriately here is therefore a tough question. As mentioned, city councils may establish rules of decorum that incidentally limit the free speech of attendees. On the other hand, city councils cannot use those same rules to stifle speakers with whom they disagree. Any determination here would be a highly fact-specific analysis, which is unfortunately outside the scope of services we can provide at this hotline.

We recommend speaking with a local lawyer experienced in city government issues, who can provide you with more detailed analysis and specific advice.  In any event, you may wish to inform the city attorney, and other members of the city council, that you believe their actions have violated both the Brown Act and the Constitution. That may at the least discourage them from engaging in similar behavior going forward.

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.