When is it okay to videotape a meeting?

Answer

It is unclear from your email whether the community meeting was a meeting of a legislative body, which would be covered by California’s open meeting law, known as the Brown Act.

The Brown Act applies to “legislative bodies,” which include commissions, committees, boards or other bodies of a local agency, “whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.”Gov’t Code section 54952(b).

If this meeting was organized by a legislative body that falls within the definition of the Brown Act, then the basic answer to your question is yes, the meeting may be taped.Government Code section 54953.5(a) provides:

(a) Any person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings with an audio or video tape recorder or a still or motion picture camera in the absence of a reasonable finding by the legislative body of the local agency that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.

Even if the community meeting is not subject to the Brown Act, it may be subject to constitutional principles if it was held in a location considered a “public forum.”

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 “designated public forums,” which are 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 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).

If the community meeting you describe was open to the public, it may very well qualify as a “limited public forum.” See Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719, 728 (C.D. Cal. 1996) (open session of a school board meeting is a designated, limited public forum); Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 475 (2000) (“public forum” is traditionally defined as a place that is open to the public where information is freely exchanged).

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) (“content-neutral” speech restrictions are those that are justified without reference to the content of the regulated speech).

If the community meeting qualifies as a “public forum” or “limited public forum,” a high standard must be met before regulations may be imposed pertaining to attendance or taping.