Elected Officials Right to Public Comment

Answer

Although your inquiry is not entirely clear, I am assuming you are referring to a situation where a member of the City Council made remarks during a public comment period.  The Brown Act provides 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 . . ..”  Cal. Govt. Code Section 54954.3(a).  As an initial matter, your question goes to whether a member of an elected body is a “member of the public” for the purposes of public comment before that elected body.

In a written opinion issued last year, the California Attorney General concluded that the legislative body of a local agency may not permit an agency employee from addressing the body during public comment period.

We are not aware of any authority definitively stating that an elected member of the legislative body itself has the right to speak during public comment period.  On the other hand, we are not aware of any authority to indicate that the member of the legislative body would not have such a right, and permitting him/her to speak to state his views on a matter within the subject matter jurisdiction of the body would appear to be consistent with the policies behind the Brown Act.

A legislative body can take action against “disruptive speech,” but it cannot prevent speech with which it does not agree merely by labeling it disruptive.  In the context of city council meetings, the Ninth Circuit has explained that “[a] speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies.  The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner.  Indeed, such conduct may interfere with the rights of other speakers.”  White v. City of Norwalk, 900 F.2d 1421, 1426 (9th Cir. 1990).

A meeting of a legislative body is considered to be a limited public forum for First Amendment purposes, and as such, the body faces a substantial burden in justifying any content-based restrictions on speech of members of the public during the public comment portion of the meeting.  Any limitations on content must be shown to be necessary to serve a compelling state interest, and must be narrowly tailored to achieve that goal.  See, e.g., Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (S.D. Cal. 1997). The restrictions adopted by the body must be reasonable, must be viewpoint neutral, and must preserve the purposes of the body’s limited forum.  In addition, the Act specifically provides that: “[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.  (Cal. Govt. Code Section 54954.3(c)).  Attempts to suppress critical speech — even speech critical of the views of certain members of the public, including speech that may be considered insulting – may be considered an unconstitutional content-based restriction. For example, the Leventhal court held that policies prohibiting members of the public from criticizing school district employees were unconstitutional because the policies promoted only one viewpoint — e.g. praising and maintaining the status quo.  By allowing only one viewpoint to be expressed, the policies foreclosed meaningful public debate on a particular subject.

Although this information may not be what you wanted to hear, I hope it is nevertheless useful to you.