City Council allowing presentation not on the agenda

Answer

The Brown Act provides that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3.In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.”Gov’t Code § 54954.2.

It is not clear that inviting an individual who is not a member of the legislative body or its staff to address the body as part of the public comment part of the meeting would necessarily violate this provision, though extended substantive exchanges between the members of the body and this individual might effectively transform the episode from public comments to discussion that should have been included as an agenda item (which should then have also triggered the public’s right to comment on that item).

With respect to public comment during meetings, the Brown Act provides that:

(a) 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, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

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.

(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) 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.
(c) The 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. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
Gov’t Code § 54954.3.

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).

To the extent a legislative body enforces restrictions on speech that are based on the content of that speech (i.e., speakers favorable to the body get to speak longer and without interruption while speakers critical of the body are interrupted and have their time curtailed), then that might be a violation of the Brown Act (and possibly of the First Amendment), as explained below.

The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

The First Amendment limits the ability of legislative bodies to restrict speech based on its content.

In order to restrict speech in a public forum or limited public forum, 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, 460 U.S. at 45.

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).

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).

One caveat to this high standard are situations where the moderator may limit speech in order to maintain order at the meeting.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. 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.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.