Question
May a legislative body prevent members of the public speaking during the public comments agenda item from blatantly campaigning for or against a candidate for that body? I believe that that type of discussion is “not a matter subject to the body’s jurisdiction.” I also believe that such comments at such a meeting are not guaranteed under the first amendment. What say you?
Answer
It sounds like you are familiar with Section 54954.3 of the California Government Code (reproduced below), which provides that bodies subject to the Brown Act shall provide an opportunity for members of the public to address the body on items of interest to the public that are within the subject matter jurisdiction of the legislative body. It’s difficult to say, categorically, that “blatantly campaigning for or against a candidate for that body” would or would not be considered within the subject matter jurisdiction of the body. Among other things, the question probably depends on precisely what the speech consisted of. Conceivably, carefully crafted restrictions on such speech could be permissible time, place, and manner restrictions under the First Amendment. Indeed, Subdivision (b) of Section 54954.3 explicitly authorizes the body to regulate the public-comment process.
54954.3. (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.
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