Can a city council member control clapping during a meeting?

Answer

General background: Brown Act and public comment

The First Amendment does not by itself generally guarantee an absolute right to address or give public comment to a governmental body or agency during its meetings. See, e.g., Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283-84 (1984) (“The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy…. Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted.”); Madison Joint School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 175 n.8 (1976) (noting public bodies “may hold nonpublic sessions to transact business”); Curnin v. Town of Egremont, 510 F.3d 24, 29 (1st Cir. 2007) (“Non-legislators have no First Amendment right to address sessions of deliberating legislative bodies. The Supreme Court has never extended First Amendment forum analysis to a deliberating legislative body or to the body’s rules about who may speak.”); West Farms Assoc. v. State Traffic Com., 951 F.2d 469, 473 (2d Cir. 1991) (holding state body “has no federal obligation to open all of its meetings to the public. On the contrary, it is plainly permitted by the First Amendment to conduct business in private”); Fraternal Order of Police v. Ocean City, 916 F.2d 919, 923 (4th Cir. 1990) (holding “the First Amendment does not demand that government officials be accessible to all who wish to influence their policy decisions” and thus “city officials were free to refuse to speak with whomever they chose”).

However, if other law provides a right to address public meetings, then the First Amendment may place certain limits on the right to restrict speech at such meetings. In California, the Brown Act provides a right to public comment. See Govt. Code § 54954.3(a).

As discussed generally on our website, the Brown Act governs each meeting of a “legislative body” of a “local agency” in California. Govt. Code §§ 54951, 54952. Such meetings must generally be open to the public, with opportunity for public comment, based on an agenda made available to the public in advance, except to the extent the Brown Act specifically allows certain matters to be discussed in closed session.

With respect to public comments, Government Code section 54954.3(a) states, “Every 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.”

As to special meetings, “Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.” Gov. Code section 54954.3(a).

This statute “has been construed to mean that for each agenda of a regular meeting, there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.” Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1079 (2008).

Limits on public comment

Under Government Code section 54954.3(b)(1), the legislative body may adopt “reasonable regulations” to ensure the public’s right to comment in section (a) above is carried out, “including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”

That said, “[t]he legislative body of a local agency 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.” Govt. Code § 54954.3(c).

Courts accord significant flexibility to legislative bodies in determining what is a “reasonable” regulation of public comment, as long as the bodies do not discriminate based on viewpoint or prohibit criticism. As one court noted:

[H]aving no limit on either the length of any particular presentation by a member of the public or on the number of public speakers (or on the total time for public comment) has the potential for endless discussion—given the potential that there will be a far greater number of members of the public who may wish to speak to an issue than there are staff and guests who make presentations concerning it. The number of staff and invited guests speaking on a topic will clearly be limited; the potential for public speakers is potentially extensive and needs some reasonable limitation.

Ribakoff v. City of Long Beach, 27 Cal. App. 5th 150, 172 (2018).

In particular, the Court of Appeal held it did not violate the Brown Act when the chair of a legislative body “announced at the beginning of the meeting that public comment on each agenda item would be limited to two minutes per speaker, instead of the three minutes normally allotted to each speaker,” because the chair “anticipated that four of the items on the agenda would be lengthy, and the Commission would not be able to complete the meeting in a reasonable period unless public comments were shortened.” Chaffee v. San Francisco Public Library Comm., 134 Cal. App. 4th 109, 111–12 (2005).

Also, the Court of Appeal held that “[l]imiting public comment on items described in the agenda to the time when those items are being considered by the Board is not an unreasonable regulation,” because it “ensures the Board has a clear and complete understanding of the public concern regarding an item of business on the agenda at the time that item is to be transacted or discussed.” Olson v. Hornbrook Community Services Dist., 33 Cal. App. 5th 502, 528 (2019).

A legislative body can set its own internal rules that go beyond the requirements of the Brown Act to provide greater access or transparency.

Apart from the Brown Act, the First Amendment generally reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). “Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

In general, the Ninth Circuit Court of Appeals has said the public comment portion of a city council meeting can be considered a limited public forum, in which restrictions on speech are typically upheld if they are deemed reasonable and viewpoint neutral. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

Although the First Amendment may permit removal of an individual from a governing board meeting due to actual disruption of the meeting, the board may not define disruption in any way it wishes. “Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc [after the fact] disruption, or imaginary disruption.” Norse, 629 F.3d. at 976 (individual could not be expelled from meeting solely for giving silent Nazi salute).

For example, rules imposing time limits or restricting comments to relevant subjects might be deemed reasonable if they are applied equally to all speakers. But generally “a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing.” White v. Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); see also, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812–13 (9th Cir. 2013) (rule against “personal, impertinent, profane” or “insolent” remarks at city council meeting violated First Amendment).

We are not aware of a case on point that describes a board member permitting or prohibiting audience clapping during meetings based on their own opinions about a subject matter. However, the California Supreme Court ruled that protestors who rhythmically shouted and clapped during a congressman’s speech at a 4th of July celebration did not cause an unlawful disruption of the speech for purposes of Penal Code section 403.  In re Kay, 1 Cal. 3d 930, 935, 945 (1970). However, the facts of that case were different from a meeting of a legislative body governed by the Brown Act.

The Ninth Circuit has held the First Amendment does not generally allow the government to prohibit criticism of officials while allowing praise, because such a provision discriminates based on viewpoint. Chaker v. Crogan, 428 F.3d 1215, 1228 (9th Cir. 2005). For similar reasons, a court held that it violates the First Amendment to prohibit criticism of specific officials or employees at a school board meeting. Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (S.D. Cal. 1997).