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untanglingwebs
El Supremo
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Overview >
By David L. Hudson Jr.
First Amendment scholar
A citizen feels strongly about an issue in the community. He or she attends a city council meeting to voice those concerns. Unfortunately, the powers that be prohibit the citizen from addressing the controversial topic. Have the citizen’s First Amendment rights been violated?
Such a scenario is not a product of a healthy imagination. It is a daily reality for countless citizens across the country.
Sometimes government officials need to silence disruptive citizens or to prohibit endless repetition. However, other times the officials may be squelching citizen speech because they want to suppress the message. This article seeks to explain the legal parameters surrounding the regulation of citizen speech.
Many government meetings are open to the public and reserve a “public comment” time for citizen commentary on issues. The 9th U.S. Circuit Court of Appeals explained in its 1990 decision White v. City of Norwalk: “Citizens have an enormous First Amendment interest in directing speech about public issues to those who govern their city.” These meetings, particularly the “public comment” period, are at the very least a limited public forum during which free-speech rights receive heightened protection.
Types of public forums
In First Amendment jurisprudence, government property that has by tradition or by government operation served as a place for public expression is called a traditional public forum or a limited public forum. In a traditional public forum, such as a public street, speech receives the most protection and the government generally must allow nearly all types of speech. Restrictions on speech based on content (called content-based restrictions) are presumptively unconstitutional in a traditional public forum. This means that the government can justify them only by showing that it has a compelling state interest in imposing them, and that it has done so in a very narrowly tailored way.
At limited or designated public forums, however, the government designates certain types of subject matter. One court explained as follows: “After the government has created a designated public forum, setting boundaries on classes of speakers or topics, designated public fora are treated like traditional public fora.” This again means that content-based exclusions face a high constitutional hurdle. Even in nonpublic forums, restrictions on speech must be reasonable and viewpoint-neutral.
One must be careful in discussing the public-forum doctrine, because courts do not apply the doctrine with consistency. For example, some courts equate a limited public forum with a designated public forum. Other courts distinguish between the two, as a 2001 federal district court in Pennsylvania did in Zapach v. Dismuke. That court noted that “there is some uncertainty whether limited public fora are a subset of designated public fora or a type of nonpublic fora.”
Just because something is called a public forum doesn’t guarantee a person unfettered freedom to utter whatever is on his mind. Public bodies can limit their meetings to specified subject matters. Also, the government may impose reasonable time, place and manner restrictions on speech as long as those restrictions are content-neutral and are narrowly tailored to serve a significant government interest.
In other words, the government could impose a 15-minute time limit on all participants as long as it did not selectively apply the rule to certain speakers. Council members would violate the First Amendment if they allowed speakers with whom they agreed to speak a full 15 minutes, but allowed speakers they did not agree with to speak for only five minutes.
It bears stressing that First Amendment rights are not absolute during public-comment periods of open meetings. Speakers can be silenced if they are disruptive. Disruption has been defined to include far more than noisiness and interference. For example, a federal district court in Ohio wrote in Luckett v. City of Grand Prairie (2001) that “being disruptive is not confined to physical violence or conduct, but also encompasses any type of conduct that seriously violates rules of procedure that the council has established to government conduct at its meetings.”
“A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extending discussion of irrelevancies,” the 9th Circuit wrote in White v. City of Norwalk. “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.”
Unfortunately, many situations arise in which citizens are silenced because of the content of their speech or because they have disagreed previously with a government official. This raises the specter of censorship. Government officials may not silence speech because it criticizes them. They may not open a “public comment” period up to other topics and then carefully pick and choose which topics they want to hear. They may not even silence someone because they consider him a gadfly or a troublemaker.
In City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, (1976) the U.S. Supreme Court said in a collective-bargaining dispute case arising out of teachers’ speaking at a board of education meeting:
“Regardless of the extent to which the true contract negotiations between a public body and its employees may be regulated — an issue we need not consider at this time — the participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.”
A federal district court in Pennsylvania explained in the 1993 decision Wilkinson v. Bensalem Township: “Allowing the state to restrict a person’s right to speak based on their identity could quickly lead to the censorship of particular points of view.”
An Ohio appeals court refused to dismiss the lawsuit of an individual who sued city officials after being thrown out of a city commission meeting for wearing a ninja mask. In City of Dayton v. Esrati (1997), the Ohio appeals court reasoned that the individual wore the mask to convey his dissatisfaction with the commission. “The public nature of the legislative process and the right of citizens to participate in and voice their opinions about that process are at the heart of democratic government,” the court wrote. “The government may not impose viewpoint-based restrictions on expression in a limited public forum unless those restrictions serve a compelling state interest and are narrowly drawn to achieve that end.”
Other issues
Courts have also been wary of laws, rules or regulations that prohibit criticism or personal attacks against government officials. A federal district court in California invalidated a school district bylaw that prohibited people at school board meetings from criticizing school district employees. In Leventhal v. Vista Unified School District (1997), the court wrote: “It seems clear that the Bylaw’s prohibition on criticism of District employees is a content-based regulation. … It is equally clear that the District’s concerns and interests in proscribing public commentary cannot outweigh the public’s fundamental right to engage in robust public discourse on school issues.”
Similarly, a federal district court in Virginia struck down a school board bylaw that prohibited personal attacks during public comments at meetings. (See Bach v. School Board of the City of Virginia Beach, 2001.)
Another kind of restriction on citizen speech at public meetings involves residency. One federal appeals court determined that a city council rule prohibiting nonresidents from addressing the city council was constitutional. In Rowe v. City of Cocoa (2004), a three-judge panel of the 4th U.S. Circuit Court of Appeals determined that a resident rule was reasonable and viewpoint neutral. “A bona fide residency requirement … does not restrict speech based on a speaker’s viewpoint but instead restricts speech at meetings on the basis of residency.”
Conclusion
When a government decides to offer a “public comment” period at an open meeting, it provides that citizens may exercise their First Amendment rights. Government officials can limit comments to the relevant subject matter, control disruptive or overly repetitive speakers and impose reasonable time, place and manner restrictions on speech. However, when government officials create a public-comment forum, they have created a limited public forum in which greater free-speech protections apply. The government may not silence speakers on the basis of their viewpoint or the content of their speech. The government must treat similarly situated speakers similarly. In essence, the government must live up to the values embodied in the First Amendment. |
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Sun May 16, 2010 6:29 pm |
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untanglingwebs
El Supremo
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firstamendmentcenter.org: Topics summary
About the First Amendment Center · How to contribute · Video/RSS/podcasts · First Amendment programs · State of the First Amendment reports ...
http://www.firstamendmentcenter.org/topicssummary.aspx - 44k - Cached - Similar pages |
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Sun May 16, 2010 6:33 pm |
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untanglingwebs
El Supremo
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Michigan, it's free speech ... Sometimes
By The Associated Press
08.25.00
WESTLAND, Mich. — Freedom to comment at public community meetings varies widely in this state, and the disputes over public addresses can often lead to conflict.
At one recent Westland City Council meeting, for example, Debra Hessler-Davis had three minutes to speak, but much of the time was taken up by interruptions from council members.
When the time expired, she would not yield the floor, The Detroit News reported. So Council President Pro Tem David Cox then ordered police to remove her. Instead, 25 supporters circled her, challenging police to arrest them or let her finish.
She was allowed to finish.
In Warren, on the other hand, the City Council has simply made it a crime to disrupt its meetings.
The state's Open Meetings Act requires communities to allow public comment at public meetings. But the act doesn't spell out how much time to allow or when comment has to be allowed, according to the Michigan Attorney General's Office.
In Ann Arbor, for instance, the council allows four people to speak for four minutes on a first-come, first-served basis at the beginning of each meeting.
Other communities only allow comment at the end of a meeting. Some restrict comments to agenda items.
These types of limitations appear to be common across the state. The Michigan Municipal League surveyed 43 communities and found that 25 imposed some type of time limits on residents' comments.
Not surprisingly, some residents don't buy it
"By limiting comment, what they're basically telling the public is, 'We want to represent you, but we don't want to hear you.' Well, we're saying, 'How can you represent us if you don't know what we want?'" said Westland resident Tom Mari.
While communities can regulate how much comment and when they allow comment at meetings, they cannot regulate content, said Michael J. Steinberg, legal director of the American Civil Liberties Union of Michigan.
"Once you establish an open forum, you cannot limit the content of the speech without running into First Amendment problems," he said.
That's why the ACLU is closely following a Bay City proposal that would ban residents from "personally attacking" city officers and require residents to make their statements in a "responsible and courteous manner."
"There's a constitutional right to be discourteous," Steinberg said. |
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Sun May 16, 2010 6:43 pm |
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untanglingwebs
El Supremo
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Print
Ruling: Man arrested for cursing at meeting should get day in court
By The Associated Press,
First Amendment Center Online staff
02.05.07
DETROIT — A federal appeals court on Feb. 2 reinstated a lawsuit filed by a Flint-area man who was arrested for cursing during a public meeting.
The Ohio-based 6th U.S. Circuit Court of Appeals overturned a 2005 U.S. District Court decision that held Montrose Township police officer Stephen Robinson had probable cause to arrest Thomas Leonard, who used the word “goddamn” while addressing the township board in 2002.
“It cannot be seriously contended that any reasonable peace officer, or citizen, for that matter, would believe that mild profanity while peacefully advocating a political position could constitute a criminal act,” the three-judge panel wrote.
Leonard attended the meeting with his wife, Sarah, who owns a repair and towing company that had an exclusive towing contract with the township until 2000. The couple was involved in a controversy over the contract and sued the township and its police department in Genesee County Circuit Court over alleged misuse of power.
Sarah Leonard first addressed the board on several topics, including why the board didn’t award her company several repair contracts despite being the lowest bidder. Thomas Leonard then addressed the board, accusing the board of “screwing” his family and saying, “That’s why you’re in a goddamn lawsuit.”
Robinson arrested Leonard and took him to the police station, where he was charged with disorderly conduct and using obscene language. He was held for an hour, released, and the charges were dismissed a month later.
Leonard sued Robinson in federal court in 2003, seeking at least $25,000 in damages. He claimed the arrest violated his Fourth Amendment right to be free of unreasonable seizure and in a later motion claimed his First Amendment rights to free speech had been violated.
The court later granted Robinson’s motion to dismiss the case. The police officer had argued that he was entitled to “qualified immunity” on the constitutional allegations and that he had probable cause to arrest Leonard.
The 6th Circuit, however, rejected this argument.
“We therefore hold that no reasonable officer would find that probable cause exists to arrest a recognized speaker at a chaired public assembly based solely on the content of his speech (albeit vigorous or blasphemous) unless and until the speaker is determined to be out of order by the individual chairing the assembly,” the panel said. “Any peace officer in attendance can reasonably be expected to restrain herself from arresting speakers based upon what they say while advocating their political positions in an orderly fashion. … Therefore, because Leonard’s arrest was not supported by probable cause, it was error for the district court to grant Robinson qualified immunity.”
Ralph Chapa, a partner in the suburban Detroit law firm representing Robinson, said he was disappointed with the appeals court’s ruling and that his firm was considering an appeal to the U.S. Supreme Court.
“We think the lower court was correct and based upon sound reasoning,” Chapa said.
Glen Lenhoff, the Flint attorney representing Leonard, said if there was no appeal or request for a review by the entire appeals court, the case would go back for trial.
“All our client did was get up at a public meeting and express himself vigorously, and he was arrested for it,” Lenhoff said. “This shows the First Amendment of the United States Constitution protects people in this kind of arrest.” |
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Sun May 16, 2010 6:50 pm |
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untanglingwebs
El Supremo
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Mont. court tosses woman's disturbing-the-peace conviction
By The Associated Press,
First Amendment Center Online staff
03.02.09
GREAT FALLS, Mont. — A district judge has reversed the convictions of a woman who was found guilty of disturbing a City Commission meeting here and hitting a plain-clothed police detective in the groin.
Judge Julie Macek ruled Feb. 24 that Susan Overfield of Vaughn did not disturb the peace during the June 2007 meeting. The judge also ruled that Overfield was allowed to defend herself against police Detective Art Schalin because she reasonably believed he was an unfamiliar man when he grabbed her arm to escort her out of the meeting.
Mayor Dona Stebbins had ordered that Overfield be removed from her position at a lectern because she exceeded a three-minute speaking limit during the public-comment portion of the meeting. Overfield had been criticizing city officials about the Great Falls animal shelter.
A six-person jury convicted Overfield in March 2008 of misdemeanor disorderly conduct and assault, and she was sentenced to five days of house arrest and was fined more than $700. Overfield appealed last fall on the grounds that she was exercising her First Amendment rights, that she was justified in defending herself, that Schalin violated a law requiring him to identify himself to Overfield and that the court erred in its instructions to the jury.
Macek agreed with most of Overfield’s claims, noting that Overfield’s actions before her removal were not disruptive.
“Although the content of Overfield’s speech was direct and confrontational she did not disturb the peace by stating her opinion,” Macek wrote in her ruling in State v. Overfield. “Until such time as the mayor advised her that her time was up and Overfield responded that she needed to finish her statement there had been no issue with Overfield whatsoever. …
“It was not until a plainclothes Officer Schalin grabbed Overfield’s documents and her arm to escort her out of the room that there was any disorder at all,” the judge added.
The resulting disturbance, Macek said, was caused by the fact that Overfield did not know Schalin and did not know he was a police officer.
As such, Macek ruled, Overfield’s actions were protected speech.
Macek also ruled that the jury was improperly instructed that they could find Overfield guilty of disorderly conduct on the basis of making loud or unusual noises. The judge added that the jury was misinformed that Overfield could not legally resist Schalin’s attempt to escort her out of the room. Macek, however, rejected Overfield’s claim that Schalin was required by law to identify himself.
“I always felt I had done nothing wrong and I thought Montana law would prove me right, and it did,” Overfield said Feb. 26. “I’ve moved on.”
City Attorney David Gilko declined to comment Feb. 26, saying he was not aware of Macek’s ruling. The city prosecutor at Overfield’s trial, Chad Parker, could not be reached for comment. Stebbins did not return phone messages in time for this story. |
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Sun May 16, 2010 6:53 pm |
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untanglingwebs
El Supremo
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City Council can suspend their own rules and do not adhere to their own rules.
"Belot noted that Mayor James Ford allowed questions and answers that violated his own restrictions, established before the meeting, which prohibited speaking about gambling and "social ills" during the question section of the council meeting."
Kan. town violated would-be speaker's free-speech rights
By The Associated Press
09.17.09
WICHITA, Kan. — The city of Mulvane violated the First Amendment free-speech rights of a woman who was escorted out of a council meeting by police after she tried to talk during a public forum about a proposed casino, a federal judge ruled yesterday.
U.S. District Judge Monti Belot said in a written opinion that Jacque Farnsworth was entitled to nominal damages of $1, plus attorneys fees and costs. The judge did not award compensatory damages, finding that Farnsworth did not prove an actual injury at her Sept. 1 trial.
The court declared that Mulvane's policies and actions in the case were unconstitutional.
The Alliance Defense Fund, a religious-advocacy group based in Scottsdale, Ariz., that is representing Farnsworth, applauded the decision.
"We are very pleased with the court's decision that vindicated her rights," said Joel Oster, an Alliance Defense Fund attorney in Leawood, Kan.
As for the $1 in damages awarded, Oster said their case was not about money.
The city's attorney did not respond to after-hours e-mail seeking comment in time for this story.
Farnsworth argued in her lawsuit that the city censored speakers who opposed the proposed casino at a Jan. 16, 2008, City Council forum. The city contended that its restrictions, intended to maintain order during the meeting, were content-neutral and reasonable.
Questions and comments from Farnsworth regarding the construction of a casino in her community are protected speech under the Constitution, a fact that was not in dispute at the trial, Belot wrote in Farnsworth v. City of Mulvane.
The court agreed with Farnsworth that restrictions placed at the forum were viewpoint-based, and said even if they had been neutral the city's restrictions did not stand up to scrutiny.
Belot noted that Mayor James Ford allowed questions and answers that violated his own restrictions, established before the meeting, which prohibited speaking about gambling and "social ills" during the question section of the council meeting.
The judge noted that Ford did not cut off Harrah's casino presenter or another speaker when they touched on similar matters. He said that at the point Farnsworth was cut off from speaking, the mayor could not have objectively determined that her question would be unrelated to Harrah's presentation.
"Mayor Ford did not cut her off because she was not asking a question," Belot wrote. "Mayor Ford undoubtedly assumed that Farnsworth's question would be about gambling and 'social ills' because he knew where she stood on the question of building a casino."
The mayor ruled her question was out of order before she even asked it.
Instead of asking her to wait a few minutes until the comment section of the council meeting to speak, he had her escorted out by police, Belot wrote. As a result, she was unable to ask her question or share her comments at the meeting. |
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Sun May 16, 2010 7:01 pm |
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Derrick1965
F L I N T O I D
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| Flint City Council needs to be voted out of office for allowing the mayor to run this town down. |
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Thu May 20, 2010 10:22 pm |
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