Question
The mayor of our city proposed for new Rules of Decorum in light of recent community unrest and the public wanting to express community concerns and distrust in the city officials and business.
1. Can the rules dictate what a community member wants to speak on during regular general public comment? (non agenda items and not during a public hearing)
2. Can the rules dictate whether other community members are allowed to repeat or echo similar comments?
3. Can the rules censor applause or boos entirely? (if not out of hand)
4. Can the rules prohibit a community member from asking certain questions?
Answer
Under the Brown Act, “[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. Gov’t Code § 54954.3(a).
The Brown Act permits legislative bodies to 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.” Cal. Gov’t Code § 54954.3(b)(1). A limitation on time for each speaker, for example, presumably helps carry out the intent of giving members of the public to address the body by giving more individuals an opportunity to speak.
However, the Brown Act provides that the regulations “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.” Gov’t Code § 54954.3 (c).
Beyond this statutory requirement, the First Amendment guards against regulations that are too restrictive of speech. Regulations should be “content neutral” and narrowly tailored to serve a significant government interest, and they must allow ample alternative channels of communication. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
Generally speaking, this means that the regulation should not restrict speech based on the speaker’s message, be necessary to achieve an important goal, and not result in members of the public having no way to effectively communicate with each other and the legislative body.
If the decorum rules you mentioned suppress a particular viewpoint, then they would be “content-based” and thus would only be valid upon a showing by the government “that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Id. This a very high standard and difficult to meet.
On the other hand, if the restrictions were not imposed to dissuade public participation, but for some other “viewpoint-neutral” reason, then the government may be able to show the restrictions are permissible under the Constitution, upon a showing that its restriction is “narrowly tailored to serve a significant government interest and leave[s] open ample alternative channels of communication.” Id.
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