Rules for public comment at council meetings

Answer

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).  The Act also provides that “[t]he 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.”  Govt. Code Section 54954.3(b).

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)).  A policy which attempts to suppress critical speech 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.

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 crucial point in this case is that it was not the content of the speaker’s expression that made the behavior disruptive.

In the event you believe there has been a violation of the Brown Act that you wish to pursue, you should be aware that the Act provides both criminal and civil penalties for violations. There have been, to our knowledge, only a few criminal prosecutions under the Brown Act, and to date they generally have not been successful.  As for civil remedies, there are two options.  First, pursuant to Government Code section 54960.1, you may seek to void an action taken at such meeting.  The requirements for taking such an action require you to seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not.  The requirements are very specific, they have very short deadlines, and they are generally strictly enforced.  Generally speaking, the demand must be made within 90 days from the date the action is taken   If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days.  Alternatively, you may seek a writ of mandate under Government Code section 54960, or bring an action for declaratory or injunctive relief.  The full text of the Brown Act, and these Government Code sections, can be found at https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=2.&chapter=9.&part=1.&lawCode=GOV&title=5.