Question
The new rule one of the county supervisors has been threatening to make formal, requires constituent speakers to aggregate all remarks on as many as a dozen or more separate items into one three minute slot isolated from other speakers and staff who may have commentary on individual items.
This requires the speaker to provide a brief identifying description of each item, as the three minutes clock is running.
This process also segregates speakers who have interest in more than one item from other members of the public who only have chosen to speak on one item. Those individual speakers are given a chance to speak after an item is called. This containment/isolation of certain regular speakers is absurd and worse, insidious.
One of the big problems with being asked to compress remarks on say, 12 items into three minutes, is that the ’fast-talking’ time constraints make coherent remarks ultra challenging and often, key remarks on certain items are never heard because the Supervisors shut the mic down mid-sentence.
This, it seems, violates the ’before or during consideration of the item’ rule. If a speaker is asked to finish those remarks in Public comment, (after its been approved) and often hours later after the supervisors sort of filibuster with other business including non-urgent discussions, closed-sessions, and believe it or not lengthy adjournments for the fallen, the speaker is forced to comment on an already approved item. This is not right.
Reasonable limitations are easy to imagine, and I suppose if up to three minutes on agenda’d items plus two minutes on Public Comment were combined for five minutes, it could be workable some of the time. But the comments need to be heard before consideration. And sometimes a member of the public who has been forced to squeeze remarks into an unreasonable time slot, thus exceeding his time, is the only member of the public who wants to comment on a discussion that comes after his time is up. Here, the seat at the table of the public business is not filled and the supervisors are refusing access based on prior comments on other items. This is simply not supportable.
Answer
As a starting point — and as you may already know — 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.
Cal Gov Code § 54954.3.
Much turns on whether the regulations — either on their face or as applied — are “reasonable.” Some years ago, in deciding that a local agency could limit comment time to two minutes per speaker when necessary, the Court of Appeal cautioned that it did “not mean to imply that restrictions on public comment time may be applied unreasonably or arbitrarily.” Chaffee v. San Francisco Public Library Com., 134 Cal. App. 4th 109, 115 (2005).
But the court said it had “no difficulty in imagining situations in which such limits would be appropriate. For instance, setting stricter time limits might be necessary in order to allow every member of the public who wished to speak to do so within the total time allotted for public comment, or in order to complete a meeting with a lengthy agenda within a reasonable period of time.” Id.
The First Amendment also confines the ability of a legislative body of a local agency to restrict public comment. The Brown 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). Meetings of public bodies typically fit into this “limited public forum” category.
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).,
Bryan Cave 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.
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