I could not display a video during my public comment at a city council meeting

Answer

This inquiry raises two distinct issues: (1) the extent to which a government agency can regulate the process and form of public comments; and (2) what remedies are available for violations of public comment rules. We will first address limitations on public comment, and then we will share information about the Brown Act’s remedies separately, below.

Limits on Public Comment

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.” Government 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).

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 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 & viewpoint neutral. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

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).

In 2022, the United States District Court for the Northern District of California considered a constitutional challenge to a city council’s decision to prohibit a member of the public from reading into the record a written comment that was prepared by another person who was not present at the council meeting. Barich v. City of Cotati, No. 21-cv-00034-EMC, 2022 U.S. Dist. LEXIS 222435 (N.D. Cal. Dec. 9, 2022). There were numerous examples of other city council meetings at which persons spoke on behalf of others during the open-comment period. Id. at *10–11. The court held that there was sufficient evidence for a reasonable jury to find that the city council unlawfully discriminated against the plaintiffs by treating them differently from similarly situated speakers. Id. at *15–17.

A court might find that the city’s regulations of public comment — the requirements that media supporting public comment be submitted in advance and played only on city equipment — are reasonable and viewpoint neutral on their face under these authorities, but we don’t know of a case on point and can’t say for sure.

However, if there was evidence that the city imposed the regulations to silence particular viewpoints or that it applied the regulations in a manner that discriminated among public commenters, a court might find Brown Act and/or First Amendment violations. See Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 758 (1988) (distinguishing “facial” and “as-applied” challenges to government regulations of speech); Govt. Code § 54954.3(c).

Remedies

The Brown Act provides two sets of remedies to address alleged violations of the Act: “cure and correct” and “cease and desist.” Each is designed to accomplish different things. Either can be invoked by the district attorney or any member of the public in California.

The Court of Appeal has said that any citizen of California, not only “residents within the jurisdiction of the legislative body involved” or “taxpayers therein,” may bring suit as an “interested person” to enforce the Brown Act. McKee v. Orange Unified School Dist., 110 Cal. App. 4th 1310, 1316 (2003).

The “cure & correct” remedy is for declaring certain actions null and void in specific circumstances. It is not available for all violations — for example, it does not apply to violations of public comment rights.

The “cease & desist” remedy is for seeking a finding that an agency violated the Brown Act in the past, without setting aside a specific action as null and void. One may also sue to prevent future violations.

Generally, a plaintiff prevailing in a Brown Act case may seek to recover costs and attorney fees from the agency. Please see below for more details.

Cure & Correct

The Brown Act states, “The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of” the Brown Act’s open-meeting or agenda requirements is “null and void.” Govt. Code § 54960.1(a).

A court may declare agency action null and void only for violating certain provisions of the Brown Act, such as “requirements for open meetings (§ 54953), posting agendas (§ 54954.2), closed session item descriptions (§ 54954.5), meetings regarding new or increased taxes or assessments (§ 54954.6), special meetings (§ 54956), and emergency meetings (§ 54956.5).” Fowler v. City of Lafayette, 46 Cal. App. 5th 360, 371 n.3 (2020).

Please note that a court may not declare an action null and void for other violations, such as violation of public comment rules. Olson v. Hornbrook Community Services Dist., 33 Cal. App. 5th 502, 518 (2019). Please see below for more information on the “Cease & Desist” remedy, which is available for violations of public comment rules.

“[A]ction taken” means “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” Govt. Code § 54952.6.

Before going to court, the plaintiff must make a written “demand of the legislative body to cure or correct” the allegedly unlawful action “within 90 days from the date the action was taken” if it was not taken in open session, or within 30 days if it was. Govt. Code § 54960.1(b), (c)(1). The legislative body must respond to the cure and correct letter within 30 days of receiving it. Govt. Code § 54960.1(c)(2); see also Page v. MiraCosta Community College Dist.,180 Cal. App. 4th 471, 500 (2009) (“To state a cause of action for violation of section 54960.1 of the Brown Act, a petitioner must allege (1) that a legislative body of a local agency violated one or more enumerated Brown Act statutes; (2) that there was ‘action taken’ by the local legislative body in connection with the violation; and (3) that before commencing the action, plaintiff made a timely demand of the legislative body to cure or correct the action alleged to have been taken in violation of the enumerated statutes, and the legislative body did not cure or correct the challenged action.”) (citation & quotation marks omitted)).

If the agency does not cure and correct the alleged violation, the deadline to file suit is 15 days after receipt of the legislative body’s response, or 15 days after the 30-day response deadline expires if the body does not respond, whichever is earlier. Govt. Code § 54960.1(c)(4).

Please refer to the statutes to confirm the exact process and time limits, which are mandatory and strictly enforced.

Although the text of the Brown Act does not expressly contain such a requirement, courts have held plaintiffs “must show prejudice” from a violation to justify setting aside agency action as null & void. See, e.g., Olson, 33 Cal. App. 5th at 517.

The district attorney or any interested person may pursue litigation in an effort to require the legislative body of a local agency to cure or correct an action; however, before this occurs, the district attorney or interested person is required to submit a cure & correct letter to the legislative body. Cal Gov. Code § 54960.1(a)–(b). Burton v. Campbell, 106 Cal. App. 5th 953, 962–64 (2024). “[A] person may bring an action seeking relief under section 54960.1 only if that same person makes a demand to cure and correct before filing suit.” Burton, 106 Cal. App. 5th at 964.

A sample cure and correct template letter is available on our website, although we can’t make any promises or guarantees about it.

Cease & Desist

The Brown Act states, “The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2.” Govt. Code § 54960(a).

In other words, even if one is not seeking to declare certain actions null and void, one may file a lawsuit to stop or prevent ongoing or future violations of the Brown Act, or to ask the court to decide if the Brown Act was violated in the past.

Unlike the “cure & correct” remedy, which is limited to specific violations of the Brown Act, the “cease & desist” remedy is available for any violation of the Act, for example, violation of the public comment rules. The cease & desist remedy is also available to correct ongoing violations of the Act, even if one is not challenging a particular “decision” or “vote.” Govt. Code § 54952.6.

Before filing a lawsuit “to determine the applicability” of the Brown Act “to past actions of the legislative body,” one must first send a “cease and desist letter” to the legislative body “within nine months of the alleged violation.” Govt. Code § 54960.2(a)(1)-(2). The legislative body has 30 days to respond to the letter. Govt. Code § 54960.2(b).

Unless the legislative body responds with an “unconditional commitment” to cease and desist from the challenged violation within that time, the time limit to file suit is within 60 days of the legislative body’s response, or within 60 days of the expiration of the 30 days to respond, whichever is earlier. Govt. Code § 54960.2(a)(4).

The time limit is mandatory and strictly enforced. Please see the statute for more details on the procedure to be followed.

However, under this statute, a court has held that a cease and desist letter is only required “for litigation to determine the Brown Act’s applicability to past actions of a legislative body.” Center for Local Government Accountability v. City of San Diego, 247 Cal. App. 4th 1146, 1154 (2016). The court held that such a letter is not required “before the filing of litigation to determine the Brown Act’s applicability to ongoing or threatened future actions.” Id. at 1156.

Costs & Attorney Fees

Generally, when a plaintiff prevails in a Brown Act lawsuit, the plaintiff may seek to recover costs & attorney fees from the local agency. See Govt. Code § 54960.5; See e.g., Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors, 112 Cal. App. 4th 1313, 1323 (2003). A court may award “court costs and reasonable attorney fees” to the defendant prevailing in a Brown Act case only if “the court finds that the action was clearly frivolous and totally lacking in merit.” Govt. Code § 54960.5.