Can the City Council ban non-disruptive clapping by audience members?

Answer

I am very sorry to hear about this recent change by the City Council to prohibit non-disruptive clapping at City Council meetings.  Your inquiry raises some interesting issues.  As you likely know, California’s open meeting law, known as the Brown Act applies to legislative bodies, 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]reasonable 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 allocated 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).

Regarding public comment, public comment sessions have been found to be limited public forums, limited by the content restrictions set forth in the Brown Act.

See White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).  Courts recognize that in situations such as the one you describe, i.e., a government meeting, “[c]citizens 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.

Generally, in a limited public forum, such as the City Council meeting, 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 v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983).

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).

Where content-based restrictions are involved, a very high standard must be met before the government can restrict such speech.  Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

While we cannot give you specific legal advice for the facts and circumstances of your case through the  services we provide through the legal hotline, the case of Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010) may be particularly helpful to you. Available here on Google Scholar.

In Norse an attendee at the Santa Cruz City Council meeting was ejected and arrested after an incident in which he gave the Council a silent Nazi salute. Norse filed a federal complaint challenging the constitutionality of the City Council’s decorum policy on its face and as applied to his conduct at the meeting.  The Ninth Circuit flatly rejected the City’s contention that only certain portions of its meetings are limited public forums and that no members of the public have any
First Amendment rights at all once the public comment period has concluded. Id. at 975.

The Court went on to emphasize that a city council may not, in effect, close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment period has closed. The entire city council meeting held in public is a limited public forum. But the fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all  First Amendment rights. Id.  at 975-76.

The Court found that the First Amendment protections of a limited public forum applied not only during the public comment period of the meeting, but throughout the entire public meeting.

Norse also challenged the City’s “Rules of Decorum” policy— similar to your case.  In Norse, the Ninth Circuit reiterated the rule from Norwalk that a city’s “Rules of Decorum” are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting. Norwalk. 900 F.2d at 1424–26.

In Norse, the City argued that cities may define “disturbance” in any way they choose. Specifically, the City argued that it has defined any violation of its decorum rules to be a “disturbance.” Therefore, the City reasoned, Norwalk permits the City to eject anyone for violation of the City’s rules—rules that were only held to be facially valid to the extent that they require a person actually to disturb a meeting before being ejected.

The Court rejected the City’s argument, stating “Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption. The City cannot define disruption so as to include non-disruption to invoke the aid of Norwalk.” Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010).

In the situation you describe, it may be that clapping during public comment does not amount to the type of ‘actual disturbance’ required by Norse and Norwalk to merit removal or ejection from the City Council meeting.

You may want to write to the City Council regarding the changes to the way that this policy is being implemented, highlighting the ways that you believe that this interpretation offends First Amendment principles.