THE FIRST AMENDMENT, FREE SPEECH AND CIVILITY: Limiting Disruptive Speech During Open City Council Meetings

Transcription

1 THE FIRST AMENDMENT, FREE SPEECH AND CIVILITY: Limiting Disruptive Speech During Open City Council Meetings

2 THE FIRST AMENDMENT, FREE SPEECH AND CIVILITY: Limiting Disruptive Speech During Open City Council Meetings TABLE OF CONTENTS I EXECUTIVE SUMMARY 1 II INTRODUCTION 1 III PUBLIC FORUM DOCTRINE and FREE SPEECH 3 IV CONTENT BASED REGULATION in a LIMITED PUBLIC FORUM 6 V UNPROTECTED SPEECH in a LIMITED PUBLIC FORUM 7 VI CONTENT NEUTRAL REGULATIONS in a LIMITED PUBLIC FORUM 11 VII PROPOSED MUNICIPAL CODE RE: ANTI-DISRUPTION ORDINANCE 14 VIII CONCLUSION 15

3 I. EXECUTIVE SUMMARY In order to establish a constitutional policy that might help diminish disruptive behavior at city council meetings, the policy must only regulate content-neutral time, place, and manner restrictions. In California, the courts have held that city council meetings are to be treated as limited public forum. A time, place, manner regulation in a limited public forum is constitutionally valid if it is: (i) content neutral; (ii) narrowly tailored to serve a significant government interest; and (iii) leaves open alternative channels of communication. The City of Ontario clearly has a significant interest in maintaining the decorum and orderly conduct of its meetings; so that it can carry out efficiently the business of the City. The key to regulating speech at city council meetings is regulating disruptive behavior rather than the content of the speech. Once a reasonable and viewpoint neutral determination has been made by the Mayor as the presiding officer at the city council meeting that the speech has risen to the level of a disruption then the Mayor can request that the speaker stop speaking or even be removed from the meeting, if necessary, to avoid disruption. However, the policy cannot grant unfettered discretion to the presiding officer. Evidence must exist that the behavior was disruptive and the presiding officer must make a clear record that the action taken was not related to the content of the speech. The following is a suggested draft policy for the City Council s consideration that will be discussed further throughout this paper: Any person who addresses the City Council, or any other legislative body of the City, and makes personal, impertinent, slanderous, or profane remarks to any member of the city s council, legislative body member or staff, or general public that disrupts, disturbs, or otherwise impedes the orderly conduct of any city council or the legislative body meeting shall, at the discretion of the presiding officer or a majority of the city council or the legislative body, be barred from further audience before the city council or the legislative body during that meeting. Any person who engages in disorderly conduct or utters loud, threatening, offensive, or abusive language that disrupts, disturbs, or otherwise impedes the orderly conduct of any city council or legislative body meeting shall, at the discretion of the presiding officer or a majority of the city council or legislative body, be barred from further audience before the council during that meeting. II. INTRODUCTION As a dignified society, we covet the right of men and women to participate in the free trade of ideas. Those who won our independence believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth 1 With this freedom comes not only lofty discourse and free criticism of the government, but also speech of little value or no value. In the free trade of ideas, some will soar like a butterfly and 1 Whitney v. California (1927) 274 U.S. 357,

4 others will sting like a bee ; and still others will wallow in stagnancy like a gadfly. The First Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment secures the right of the people to be free from government action that abridges the freedom of speech or the freedom to petition the government for a redress of grievances. 2 The California Constitution provides an even broader guarantee of the right of free speech than does the U.S. Constitution. 3 The challenge before the City Council of the City of Ontario is one of historical significance and pits the First Amendment right to free speech against civility. While it is clear that civility can not be mandated, it may be inspired by aspirational rules 4 that not only give rise to decorum at public meetings, but also provide for peaceable assembly and the exchange of converging ideas. Under the Brown Act, California s open meetings law, the City Council must provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, and which is within the subject matter jurisdiction of the legislative body, before or during consideration of the item. 5 The Brown Act prohibits the City Council from enacting regulations prohibiting public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. 6 Criticism, heated debate, and colorful testimony are both anticipated and welcomed during the public comment portion of city council meetings. The City Council is aware that public office is no place for the thin-skinned. 7 However, the Brown Act and the First Amendment have paved the way for the growing phenomenon of the gadfly. 8 The gadfly is one who generally is without a program and belongs to no group, possesses a distrust or disdain for the government, and is gratified by disrupting the public meeting. 9 The City Council has been forced to endure public comments that are, at times, off topic and laced with hate, invective, obscenity, pornography, profanity, slander, racial epithets, personal attacks, and even hexes. This paper will address whether and how the City Council can limit disruptive speech during the open city council meetings without trampling the guarantees of the First Amendment, the California Constitution, or the mandates of the Brown Act. 2 U.S. CONST. amend. I; U.S. CONST. amend. XIV. 3 Cal. Const. art. I, 2; Blatty v. New York Times Co (1986) 42 Cal.3d 1033, 1041; Gilbert v. National Enquirer, Inc. (1996) 43 Cal. App.4 th 1135, 1145.) 4 Richard M. Gardella, Free Speech and Civility: A View of Public Meeting Participation, 28 WESTCHESTER B. J Cal. Gov. Code et seq. 6 Cal. Gov. Code (c). 7 Pittsburg Unified School Dist. v. California School Employees Assn. (1985) 166 Cal.App.3d 875, 899; See also In re Kay (1970) 1 Cal.3d 930 (noting that audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment). 8 Gardella, supra note 4, at Id. 2

5 Part II of this paper will discuss the Public Forum Doctrine in general, including why a city council meeting has been designated as a limited public forum. Part III focuses on contentbased regulations of speech in a limited public forum and the difficulty faced by the government to enforce such regulation of speech. In response to the ever-pressing question, what about fighting word?, Part IV speaks briefly about those categories of speech that have been defined as unprotected by the U.S. Supreme Court; although concluding that ordinances prohibiting unprotected speech are largely unworkable. Alas, Part V addresses content-neutral regulation of speech in a limited public forum; thereby describing the clearest path to be taken by a city council wishing to limit disruptive speech. To that end, Part VI sets forth a proposed antidisruption ordinance likely to pass constitutional muster in the Ninth Circuit. Part VII concludes that the most viable solution to the gadfly problem are regulations aimed at limiting conduct rather than speech. Finally, attached as Appendix I to this paper are newspaper stories from other cities plagued with similar disruptions at council meetings and other works focused on civility at public meetings. III. PUBLIC FORUM DOCTRINE and FREE SPEECH Traditional public forum. Designated (limited) public forum. 10 Nonpublic forum. According to the U.S. Supreme court, the proper First Amendment analysis differs depending on whether the area in question falls in one category rather than another. 11 Under the public forum doctrine, a court must decide to which of the categories of public forum the property to which access by a speaker is being sought belongs. 12 This categorization, along with the type of regulation (either content based or content neutral) will determine the type of review applied to the government regulation by a court. 13 Type of Review The type of review applied to the regulation or government conduct restricting access to the public forum (or suppressing speech) will almost always determine the outcome of the case. 14 The review is limited to either strict scrutiny or rational basis. Rarely have regulations passed strict scrutiny review where the government must demonstrate a regulation or action limiting speech is necessary and narrowly drawn to achieve a compelling government interest. 15 In contrast, few have failed the rational basis test where the government can show the regulation is reasonable and viewpoint neutral (Ronnie J. Fischer, What s in a Name? : An Attempt to Resolve the Analytic Ambiguity of the Designated and Limited Public Forum, 107 DICK. L. REV. 639, (2003).) 11 Board of Airport Comm rs of the City of Los Angeles v. Jews for Jesus, Inc. (1987) 482 U.S. 569, (O Connor, J.) 12 Capitol Square Review & Advisory Bd. v. Pinette (1995) 515 U.S. 753, Id. 14 Ronnie J. Fischer, What s in a Name? : An Attempt to Resolve the Analytic Ambiguity of the Designated and Limited Public Forum, 107 DICK. L. REV. 639 (2003) (commenting that despite its importance of categorizing government property has become riddled with ambiguity as to the level of scrutiny applied to the middle category.) 15 See Kindt v. Santa Monica Rent Control Board (9 th Circ. 1995) 67 F.3d 266, 269.) 16 Id. 3

6 Split of Decision Among Courts Notably, the categorization of government property into one of the public forum and the level of review applied has been a point of confusion and a contradictory collection of ideas in different jurisdictions or even within the same jurisdiction. 17 Some courts do not distinguish between a designated and a limited public forum, and apply strict scrutiny to either. 18 Other courts, including some in the Ninth Circuit, recognize the middle category as two separate categories: the limited public forum being a subset of the designated public forum and apply strict scrutiny to the designated public forum and rational basis to the limited public forum. 19 However, the majority of courts in the Ninth Circuit, (particularly the California Appellate Courts in the Central District under whose jurisdiction the City of Ontario would fall), use the term limited and designated interchangeably and apply strict scrutiny to viewpoint restrictions and rational basis review to subject matter restrictions. 20 Types of Public Forum: Traditional, Designated/Limited, and Nonpublic In Perry Ed. Assn. v. Perry Local Educator s Assn., 21 the seminal case defining the public forum doctrine, U.S. Supreme court set forth the following rules regarding the right of free speech on public property: 22 "'In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." [Citation.] In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its interest is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. [Citation.] The State may also enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. [Citations.] "'A second category consists of public property which the State has opened for 17 Fischer, supra note 14, at Id. 19 Id. 20 See White v. City of Norwalk (1990) 900 F.2d 1421; See also Kindt, 67 F.3d 266; See also Owolo v. City of Inglewood (1996) 1996 U.S. App. LEXIS (unpublished opinion.); Norse v. City of Santa Cruz (2003) 118 Fed.Appx. 177 (unpublished opinion.); Baca v. Moreno Valley U.S.D. (1996) 936 F.Supp. 719, (1983) 460 U.S. 37, The first set forth is the traditional public forum, the second is the designated/limited public forum, and the third is the nonpublic forum. 4

7 use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. [Citations.] Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. [Citation.] "'Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." [Citation.] In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. [Citation.] As we have stated on several occasions, "'[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use of which it is lawfully dedicated.'" [Citations.]' 23 The Open Meeting of a City Council in California is a Designates/Limited Pubic Forum The California courts have construed the California Constitution as being more protective of a person s free speech rights than the U.S. Constitution. 24 This means that, in most cases, if a government limit on free speech is constitutional under California s Constitution, it will survive scrutiny under the U.S. Constitution as well. California courts have adopted the general public forum doctrine enunciated in Perry as an analytical framework. 25 The California Legislature has designated open city council meetings as public forum, (i.e., open to the public in general, but limited to comments related to the subject matter jurisdiction of the council). 26 The Brown Act provides that: All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, 27 and the public must be allowed to speak at such meetings on any item of interest to the public, that is within the subject matter of the legislative body, 28 Therefore, the open meetings of a city council are limited public forum, and any regulation of speech in such forum must be reviewed in light of the nature of that 23 Id Op. Gen. Cal. 224 (1995). 25 Id. (citing to Sands v. Morongo U.S.D (1991) 53 Cal.3d 863, 912 fn. 4; Chino Feminist Women s Health Center v. Scully (1989) 208 Cal.App.3d 230, ); Clark v. Burleigh (1992) 4 Cal.4 th 474, Cal. Gov. Code ; See generally Baca v. Moreno Valley U.S.D. (1996) 936 F.Supp. 719, Cal. Gov. Code Cal. Gov. Code

8 forum 29. IV. CONTENT BASED REGULATIONS in a LIMITED PUBLIC FORUM A content-based regulation is a regulation seeking to forbid communication of a specific idea. A regulation or government action is also considered content-based if it seeks to limit the use of specific words used to express ideas. (As opposed to content-neutral regulations, discussed below, that are meant to regulate the conduct incidental to speech and not the speech itself.) 30 When a state creates a limited public forum, like the public comment portion of the city council meeting, it may limit the speech to the subject matter to be discussed, 31 which is a type of content-based regulation. Essentially, by limiting the speech of a person desiring to access the public forum to the subject matter to be discussed, the city council is limiting that person s access to the public forum; in that he or she does not have unfettered access to speak about anything. 32 If the state does limit access to the forum based on the subject matter or speaker identity, access limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral. 33 In other words, the grant or denial of access to a limited public forum by the government is subject to a rational basis review. However, the power of a city council to limit access based on subject matter must not be confused with the rule that once the particular subject matter which may be discussed in a particular limited forum has been designated, the government may not then also limit the view which may be expressed on that subject matter. 34 Thus, in White v. City of Norwalk 35, discussed in more detail below, the court held that although city officials properly could restrict public speakers to the subject matter at hand, (i.e., the particular agenda item being discussed), and could stop speech which was unrelated to the subject matter and hence irrelevant, the city officials could not cut off speech because the moderator disagreed with the view expressed. 36 Even in a limited public forum, before the government could enforce any contentbased exclusion it must show that its regulation (or action to limit) is necessary to serve a Op. Gen. Cal. 224 (1995); Madison School Dist. v. Wisconsin Emp. Rel. Comm n (1976) 429 U.S. 167, 175; Cornelius v. NAACP Legal Defense & Education Fund, Inc. (1985) 473 U.S. 788, 802; White v. City of Norwalk, 900 F.2d at See generally Turner Broadcasting Systems, Inc. v. F.C.C. (1994) 512 U.S. 622; Boos v. Barry (1988) 485 U.S Lamb s Chapel v. Center Moriches Sch. Dist. (1993) 508 U.S. 384, ; See also White v. City of Norwalk (1990) 900 F.2d 1421; See also Kindt, 67 F.3d 266; See also Owolo v. City of Inglewood (1996) 1996 U.S. App. LEXIS (unpublished opinion.); Norse v. City of Santa Cruz (2003) 118 Fed.Appx. 177 (unpublished opinion.); Baca v. Moreno Valley U.S.D. (1996) 936 F.Supp. 719, (1983) 460 U.S. 37, Lamb s Chapel, 508 U.S. at ; Cornelius v. NAACP Legal Defense & Education Fund, Inc. (1985) 473 U.S. 788, 803; Perry, 460 U.S. at Id; White v. City of Norwalk, 900 F.2d at 1424 (opining Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact. In the first place, in dealing with agenda items, the Council does not violate the first amendment when it restricts public speakers to the subject at hand. ) 34 Baca, 936 F.Supp (citing to Lamb s Chapel, 508 U.S. at ) 35 (1990) 900 F.2d Id. (citing to White v. City of Norwalk, 900 F.2d at ) 6

9 compelling state interest and that it is narrowly drawn to achieve that end. 37 As previously discussed, content-based regulations are presumptively invalid and it is a rare case that the government can demonstrate a sufficiently compelling state interest or a regulation that is narrowly enough drawn to pass constitutional muster. 38 For example, the Federal District Court enjoined the enforcement of a content-based school district bylaw designed to protect school employees against attack in Baca v. Moreno Valley U.S.D., 39 because the bylaw was found to be unconstitutional. The bylaw stated in part: no oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee. If an attempt is made to include charges or complaints against an employee in any way, the Board President will order the presentation stopped at once, and the Board meeting will continue in accordance with the established agenda 40 The stated purposes of the bylaw: to protect employees from attack, to protect the employees privacy, to protect the unwilling listeners and to protect the school board s interest in regulating its meetings were not sufficiently compelling to outweigh the public s interest in being able to freely express themselves. 41 V. UNPROTECTED SPEECH in a LIMITED PUBLIC FORUM One might surmise that certain words or expressions are of such low value that they are worthless to the marketplace of ideas. Further, that the government s interest in prohibiting them, because of their offensiveness (based on a societal standard) and effect on a listener, will be sufficiently compelling to withstand a strict scrutiny analysis. Generally speaking, THIS IS NOT TRUE. Rather, Justice Holmes wrote in Abrams v. United States, that the hallmark of the protection of free speech is to allow free trade in ideas --even ideas that the overwhelming majority of people might find distasteful or discomforting. 42 Justice Felix Frankfurter stated in Baumgartner v. United States, 43 One of the prerogatives of American citizenship is the right to criticize public men and measures and that meant not only informed and responsible criticism but the freedom to speak foolishly and 37 Perry, 460 U.S. at 45-46; Clark v. Burleigh, 4 Cal.4 th at Rav. v. City of St. Paul (1992) 505 U.S. 377, (1996) 936 F.Supp A mother, who was a member of the Mexican Political Association, named two employees and detailed complaints against them during a school board meeting. When she continued after being warned about the bylaw, she was removed from the meeting by a deputy sheriff and watched over so that she would not return to the meeting. Id. 40 Id. at Id. 42 (1919) 250 U.S. 616, (1944) 322 U.S

10 without moderation. 44 Justice John Harlan wrote for the majority in Cohen v. California, 45 when it overturned a draft protester s conviction for breach of the peace for wearing a jacket that said (Expletive) the Draft. Justice Harlan wrote Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.for, while the particular four-letter word being litigated here is perhaps the more distasteful than most others of its genre, it is nevertheless often true that one man s vulgarity is another s lyric. 46 The U.S. Supreme Court has expressly delineated and specifically defined certain categories of unprotected speech. To be certain, offensive words, profanity, hateful words, pornography, or indecent words are not categories of unprotected speech. 47 The following are those categories of unprotected speech that the government can restrict: Clear and Present Danger of Imminent Lawlessness: A state cannot forbid advocating the use of force or of law violation unless such advocacy (i) is intended by the speaker to produce or incite (ii) imminent lawless action, and (iii) it is likely to incite such action. 48 Fighting Words: States are free to ban the use of fighting words which are specifically defined as those personally abusive epithets that, are (i) directed to a specific person and (ii) are inherently likely to incite immediate physical retaliation. 49 The definition of fighting words has been narrowly read. While fighting words remains a category of speech unprotected by the First Amendment, the Supreme Court has never again upheld a fighting words conviction. If the law prohibiting fighting words is narrow, then it likely would be deemed an impermissible content-based restriction because it outlaws some fighting words, but not others, based on the content of speech. If the law is broad, then it probably would be invalidated on vagueness or overbreadth grounds. 50 Additionally, a statute or ordinance prohibiting fighting words cannot proscribe only certain fighting words or viewpoints and not all fighting words, in general. Such a statute would be a presumptively invalid content based regulation of 44 Id. at ; See also New York Time Co. v. Sullivan (1964) 376 U.S. 254, (holding that the First Amendment protects speech which is uninhibited, robust, wide-open, vehement, caustic, and sharp, as well as speech which lack truth, social utility or popularity or which exaggerates or vilifies.) 45 (1971) 403 U.S Id. at Therefore, the government s prohibition of these categories of words would require a showing by the government of a compelling state interest for which prohibition is necessary to achieve it. 48 Brandenburg v. Ohio (1969) 395 U.S Chaplinsky v. New Hampshire (1942) 315 U.S ERWIN CHEMERISNKY ET AL., CONSTITUTIONAL LAW 994 (Aspen Law & Business 2001) Statutes that attempt to punish fighting words will tend to be overbroad and vague and use imprecise terms. Such a statute could not be used to punish a person for saying to a police officer, White son of a bitch, I ll kill you. Gooding v. Wilson (1972) 405 U.S. 518; 8

11 speech. Therefore, legislation that criminalizes or prohibits only hate speech is not valid because it applies only to those fighting words that insult or provoke violence on the basis of race, religion, or gender. 51 Similarly, an ordinance prohibiting or punishing offensive language or discourteous language will be struck down as unconstitutionally vague because these categories are not necessarily fighting words. 52 Finally, expressions of hate or racist speech are not necessarily fighting words. Unless the use of hate speech or racist speech exactly fits the specific definition of fighting words in a particular circumstance, it is protected speech. The government may not outlaw symbols of hate such as swastikas. Moreover, the government cannot suppress a speaker because of the reaction of the audience. 53 Obscenity: The Court has defined obscenity as a depiction or description of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards; (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) lacks all serious literary, artistic, political, or scientific value---using a national, reasonable person standard, rather than the contemporary community standard. 54 The above test, known as the Miller Test, to determine if something is obscene is narrowly applied. Attempts to define obscenity broadly have encountered difficulties before the Court. Unless the use of profane or indecent language or pornographic speech or symbols falls within the meaning of obscenity, as defined by the Miller Test, it is protected. Child Pornography: While pornography, in general, may or may not qualify as obscenity, child pornography is always classified as unprotected. Child pornography is pornography depicting actual children (as opposed to adults that look like children). The government has a sweeping compelling interest in preventing the sexual exploitation and abuse of children. 55 Defamatory Speech: Through tort law and courts, people are permissibly found liable and can be sued for making defamatory statements. This means, then, that defamatory statements are not truly protected. However, some level of protection is afforded to defamatory speech by the First Amendment when it 51 R.A.V. v. City of St. Paul (1992) 505 U.S See Richard v. City of Pasadena (1995) 889 F.Supp. 384 (finding that the City attempted to censure a city councilor for abusive speech in violation of a city ordinance that was unconstitutionally vague and overly broad.) In the area of expressive conduct, vague laws offend several important value: (1) they may trap the innocent by failure to provide fair warning; (2) they may fail to provide explicit and objective standards and therefore permit arbitrary and discriminatory enforcement; and (3) they may inhibit First Amendment freedoms by forcing individuals to steer far wider of the unlawful zone than if the boundaries of the forbidden area were clearly marked. Id. at 391 (citing Finley v. National Endowment For the Arts (C.D. Cal. 1992) 795 F.Supp CHEMERINSKY, supra note 50, at Miller v. California (1973) 413 U.S. 15; Pope v. Illinois (1987) 481 U.S New York v. Ferber (1982) 456 U.S. 942,

12 is directed toward a public official or public figure. 56 Neither the U.S. or California Constitutions allow the government to censor statements merely because they are defamatory. True threats: "True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. 57 This category was added to the list of unprotected speech in 2003, but has since been followed by Federal District Courts sitting in California. 58 Finding speech a true threat depends on whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. 59 True threats are unprotected even if the speaker did not intend, and lacked the ability, to carry out the threat. The only intent requirement for a true threat is that the speaker intentionally or knowingly communicated the threat. 60 Commercial Speech: False advertising is not protected speech. Commercial speech may be regulated if: (i) the speech concerns a lawful non-fraudulent activity; (ii) a substantial government interest exists; (iii) the government action directly advances such interest; and (iv) the regulation is narrowly drawn. 61 Even assuming in the context of a city council meeting that a city council passes an ordinance prohibiting (or punishing for by ejectment from the meeting) all of the categories of unprotected speech ; such an ordinance would likely be struck down as vague, overbroad, or an invalid prior restraint on speech. If it is unclear to people of common intelligence what speech is regulated, they will have to guess what speech is impermissible; and may refrain from speech for fear of violating the ordinance. As such, the ordinance would be unconstitutionally vague. Moreover, if people have to check with the government before speaking to see if their speech meets ordinance approval, then the ordinance is an unconstitutional prior restraint. 62 Finally, such an ordinance would likely fail as being overly broad in its application. Foreseeable is the case where the ordinance will be applied unconstitutionally by a presiding officer or the city council, thereby restraining both protected and unprotected speech. 56 New York Times v. Sullivan (1964) 376 U.S Virginia v. Black (2003) 538 U.S. 343, 359. But See Watts v. United States (1969) 394 U.S. 705, 708 (noting that political hyberbole is not a true threat.) 58 See Fogel v. Grass Valley Police Dept. (E.D. Cal. 2006) 415 F.Supp.2d Id. 60 Id. 61 Central Hudson Gas v. Public Service Comm n. (1980) 447 U.S A prior restraint is preventing speech before it is spoken; as opposed to punishing it afterward. Prior restraints are presumptively invalid unless the government can meet a strict scrutiny standard. In the rarest of cases, are prior restraints constitutional. (See generally, Near v. Minnesota (1931) 283 U.S. 697 (finding that outside of a bona fide military secret, it is hard to see when prior restraint will be permitted by our courts.); See also New York Times Co. v. United States (1971) 403 U.S. 713.) 10

13 VI. CONTENT NEUTRAL REGULATIONS in a LIMITED PUBLIC FORUM a.k.a. Limiting Disruptive Conduct City council meetings would serve little purpose if, in every instance, the free exercise of the First Amendment and Brown Act rights trumped the right of the city council to conduct its business. 63 In recognition of this concept, both the Brown Act, First Amendment permit leeway in dealing with disruptions during council meetings. 64 The Brown Act authorizes City Council s to enact reasonable regulations governing public comment at city council meetings, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. 65 Moreover, the California Attorney General has opined that the City Council may prohibit members of the public, who speak during the time permitted on the agenda for public expression, from commenting on matters that are not within the subject matter jurisdiction of the legislative body, without violating the Brown Act, the U.S. Constitution or the California Constitution. 66 Finally, the Brown Act contemplates a situation where disruption of the meeting will require that the city council order the meeting room cleared and continue in session. 67 There are few reported decisions dealing with the constitutional validity of antidisruption ordinances passed by city councils. Unlike a content-based regulation of speech, an anti-disruption ordinance is a content-neutral regulation that is meant to regulate the conduct incidental to speech and not the speech itself. In a limited public forum the government is permitted to impose reasonable time, place, manner restrictions on speech. 68 The U.S. Supreme Court has found it reasonable for the board of a limited public forum to set time limits and provide that speakers who actually disrupt a meeting may be removed. 69 A time, place, manner regulation in a limited public forum is constitutionally valid if it is (i) content neutral; (ii) narrowly tailored to serve a significant government interest; and (iii) 63 David M. Fleishman, Dealing with Disruptive Members of the Public, Address at the League of California Cities Annual Conference (Oct. 2002); Written transcript attached hereto in Appendix I. 64 Id. Reference to the First Amendment is to the U.S. Constitution, specifically; but the reader should be advised that the free speech protections are equally implicated by the California Constitution at article I, section Cal. Gov. Code (b) Op. Gen. Cal. 224 (1995). 67 Cal. Gov. Code In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. Id. But see Fleishman, supra note 63, at 3 (noting that The important point to bear in mind is that mere disruption, including heckling, booing, and applauding, is not enough to clear the room. The meeting must be disrupted by such conduct, and the disruption must be so pervasive that removal of those creating the disruption is insufficient to regain order. (emphasis in original.). 68 Perry, 460 U.S. at Id. 11

14 leaves open alterative channels of communication. 70 Unlike content-based exclusion requiring a compelling state interest; content-neutral time, place, and manner regulations must serve a significant government interest. 71 A significant government interest is an important interest but it need not be as important as a compelling one. In other words, the government has less of burden to prove its interest outweighs the right of person to speak freely at any time, in any place, or in any manner. A city council has a significant interest in maintaining the decorum and orderly conduct of its meetings; so that it can carry out efficiently the business of the city. In the White v. City of Norwalk 72, the Ninth Circuit applied these principles to a city council s refusal to allow public comment regarding a personal matter involving a city official because of being unduly repetitive under a city ordinance prohibiting conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting. 73 The antidisruption ordinance stated: Each person who addresses the Council shall not make personal, impertinent, slanderous or profane remarks to any member of the Council, staff or general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting shall, at the discretion of the presiding officer or a majority of the Council, be barred from further audience before the Council during that meeting The speaker argued that the ordinance violated the First Amendment because it was a content-based regulation of his speech. The City of Norwalk asserted that the second sentence of the ordinance served as a qualifier to the first; as it prohibited not speech but only those remarks that resulted in a disruption or an impediment to the orderly conduct of the meeting. Agreeing with the City of Norwalk, the Court stated, in part: a City Council meeting is still just that, a governmental process with a governmental purpose. The Council has an agenda to be addressed and dealt with Similarly, the nature of a Council meeting means that a speaker can become disruptive in ways that would not meet breach of the peace [Citation], or fighting words likely to provoke immediate combat. [Citation.] 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. 75 In upholding the anti-disruption ordinance, the Court recognized that the role of the 70 Id. Additionally, the content-neutral time, place, and manner regulations must not be vague, overbroad, or permit unfettered discretion. 71 Id. 72 White v. City of Norwalk (9 th Cir. 1990) 900 F.2d Id. at Id. 75 Id. at ; fns. omitted. 12

15 moderator [of city council meetings] involves a great deal of discretion. 76 The moderator s discretion can not unfettered. The Court further recognized that which is the central criticism of this type of ordinance: Undoubtedly, abuses can occur, as when a moderator rules speech out of order simply because he disagrees with it, or because it employs words he does not like. 77 The holding in City of Norwalk, has been followed in a number of court decisions since. Some of the decisions are officially published; while others, although pertinent as examples, are unpublished and cannot be cited as precedential authority in court. For example, Kindt v. Santa Monica Rent Control, is a Ninth Circuit case from the Central District of California wherein the appellate court affirmed a summary judgment in favor of a rent control board and board members because they did not violate plaintiff s free speech rights because they did no more than place reasonable time and place restriction on the discussion of the issues before the board in order to preserve their interest in conducting efficient, orderly meetings. 78 Further, the court found that the restriction was not content based and the council did not violate the plaintiff s rights by ejecting him because they did so only after plaintiff became disruptive. The relevant regulation that was upheld read as follows: (a) The Presiding Officer, before calling for a motion on the adoption of any regulation or resolution, shall first inquire if there is anyone who desires to be heard on said proposed regulation or resolution. All persons desiring to be heard must have registered with the Secretary, prior to the discussion of the regulation or resolution, their name and home address and the regulation or resolution item they wish to speak on and the Presiding Officer will call upon speakers from that list. 79 Another example is from the Federal District Court for the District of California entitled, Richard v. City of Pasadena. 80 In that case, the city councilor was censured for abusive speech and behavior in city council meetings under a Pasadena ordinance that, at the time of his censure was admittedly unconstitutionally vague and overbroad. The city councilor brought this action asserting that the ordinance violated his constitutional rights because of its vagueness and overbreadth. While the case was pending, the council members passed a resolution that cured 76 Id. at Id. (finding no abuse of discretion in this case.); See also David L. Hudson, Jr., The Secondary Effects Doctrine: The Evisceration of First Amendment Freedoms, 37 WASHBURN L.J. 55 (1997) (commenting that the government will use content-neutral regulation of conduct incidental to speech as a pretext to its real goal of censoring viewpoints and content; and concluding that the secondary effect doctrine, in its present form, should be abolished.) 78 Kindt v. Santa Monica Rent Control Board (9 th Cir. 1995) 67 F.3d 266, 269; In general, when Kindt was actually ejected from the Board meetings he was disrupting the proceedings by yelling and trying to speak when it was not time for an Item 13 matter In fact, several times he addressed personally derogatory remarks to individual Board members and was not silenced the only exception was sometime after he and his cohort had disrupted a meeting, and the Board had taken a break to let things settle down. It appears that as soon as the Board returned, Kindt's cohort was seen to make an obscene gesture toward a Board member, which threatened to start the disruption all over again. Those were permissible removals. Id. at Id. at Richard v. City of Pasadena (1995) 889 F.Supp. 384,

16 the ordinance that previously prohibited speech that was not courteous, responsive, or impartial by adding that sanctions against a council member for conduct that substantially disrupts city council meetings and violated the express rules or customs that are known or should be known to Councilmembers; or 81 The key to curing the invalid ordinance was including language that limited its application to conduct alone. 82 Yet another example is an unpublished case that comes from the Ninth Circuit Court of Appeals for the Central District of California entitled, Owolo v. City of Inglewood. 83 In that case, the plaintiff attended a city council meeting and, after being warned not to disrupt speakers, was ejected. The plaintiff sought to enjoin the enforcement of the municipal anti-disruption ordinance. The court affirmed that the plaintiff failed to prove overbreadth of the ordinance or that the ordinance was applied to her in an unconstitutional manner. The plaintiff admitted that the ordinances were facially valid and similar to those upheld in White v. City of Norwalk, but contended that because her behavior was not really disruptive of the meeting she attended, the ordinance was applied to her unconstitutionally. Rejecting plaintiff s claim, the court found that evidence indicated that the ejectment was motivated by plaintiff s disruptive conduct and its effect on the order and decorum of the meeting and that she was only ejected after the mayor warned her about clapping during speaker s comments and that other disruptions would not be allowed. 84 A final example also is an unpublished case coming from the Ninth Circuit Court of Appeals for the Central District of California entitled, Norse v. City of Santa Cruz. 85 The plaintiff filed a suit alleging that his First Amendment rights were violated when he was removed from the city council meeting by order of the mayor for making a Nazi salute in protest of the mayor s ruling that the time for open comment had expired and further speakers would be out of order. The court held that the city council s procedural rules which authorized removal of any person who engaged in disruptive conduct was facially valid. 86 The court noted that if the salute prevented the council from accomplishing its business in a reasonably efficient manner, then it was disruptive. 87 VII. PROPOSED MUNICIPAL CODE RE: ANTI-DISRUPTION POLICY Based on the foregoing examples and the state of the law in the Ninth Circuit as it pertains to how a city council can limit disruptive speech during the open city council meetings 81 Id. 82 Id. at 392. The city councilor dismissed his claim but was, nevertheless, awarded attorney fees against defendants because his action was the catalyst for the change in the rule. Id. at (1996) U.S. App. LEXIS Id. 85 (2004) 118 Fed.Appx The ordinance read: Upon instruction of the presiding officer it shall be the duty of the sergeant-at-arms or any police officer present to eject from the Council Chambers any person in the audience who uses boisterous or profane language, or language tending to bring the Council or any Councilmember into contempt, or any person who interrupts and refuses to keep quiet or take a seat when ordered to do so by the presiding officer or otherwise disrupts the proceedings of the Council (Resolution No. NS-26,837 of the City of Santa Cruz, acquired from the City of Santa Cruz website.) 87 Id. (remanding the case on grounds, the appellate court found that the trial court had incorrectly dismissed the claim for failure to state a claim on the face of the complaint.) 14

17 without trampling the guarantees of the First Amendment, the California Constitution, or the mandates of the Brown Act, the following policy is proposed by the City Attorney to be considered and, as appropriate, adopted by the City Council: Any person who addresses the City Council, or any other legislative body of the City, and makes personal, impertinent, slanderous, or profane remarks to any member of the city s council, legislative body member or staff, or general public that disrupts, disturbs, or otherwise impedes the orderly conduct of any city council or the legislative body meeting shall, at the discretion of the presiding officer or a majority of the city council or the legislative body, be barred from further audience before the city council or the legislative body during that meeting. Any person who engages in disorderly conduct or utters loud, threatening, offensive, or abusive language that disrupts, disturbs, or otherwise impedes the orderly conduct of any city council or legislative body meeting shall, at the discretion of the presiding officer or a majority of the city council or legislative body, be barred from further audience before the council during that meeting. 88 The above ordinances are like the one that was challenged and upheld in White v. City of Norwalk 89 as a valid restriction on the time, place and manner of speech. The key that saves these ordinances from being fatally overbroad in violation of the Constitution (according to the Ninth Circuit Court of Appeals for the Central District of California) is the limitation that removal from the meeting occurs not because of the content of the speech but only when the speaking rises to the level of disruption or disturbance of the meeting as determined by the presiding officer or a majority of the council. The determination made by the presiding officer that the speech is disruptive conduct must be reasonable and viewpoint neutral. The ordinance will fail if it grants unfettered discretion to the presiding officer. Evidence must exist indicating that the ejectment was motivated by the gadfly s disruptive conduct and its effect on the order and decorum of the meeting. In dealing with disruptive conduct, a presiding officer must make a clear record that the action taken against the disrupter is not related to the content of his speech. 90 Additionally, the presiding officer should provide a warning to the disrupter. 91 Without such evidence, a gadfly may argue that the ordinance was applied to him or her in an unconstitutional manner to restrict speech without a compelling governmental interest These proposed ordinances can be modified to include a less severe remedy than ejectment, like turning off the microphone. Whatever the consequence for disruption, the ordinance must be clear that the prohibition is against disruption and not speech, itself. 89 (1990) 900 F.2d Gardella, supra note 4, at While a warning is recommended highly, it should not be a written requirement in the anti-disruption ordinance so as to leave room for that occasion when the disruption is such that immediate ejectment without a warning is necessary. 92 Cf. Kindt v. Santa Monica Rent Control Board (9 th Cir. 1995) 67 F.3d 266; See also Owolo v City of Inglewood (1996) 1996 U.S. App.Lexis 30867, unpublished 9 th Circuit Appellate Court decision. 15