RE: Restricting public comment at local government meetings, cont…
Am I disruptive now? Too repetitive?
At risk of over-staying my welcome on the topic, here’s the last day processing the public comment discussion started on Monday, and carried over to Tuesday, of Barrett vs. Traverse City. Obviously, I think the subject is important, but I also think it makes an interesting discussion. If you’re tired of the subject about rules and rights of public comment, here’s a video of an angry panda or may I recommend Elisa Barrett’s reply to the City Commission a week after the incident, here’s a clip from Monday’s night’s public comment…very well said.
Ultimately, this is a “public space” issue. Using the term broadly, a public space is created once a body of government opens itself up to hear the public on an issue. It becomes part of the commons, which like other commons is often overlooked and degraded from lack of wise stewardship.
This hit home with the following reader’s comment:
Frankly, I think the heat is on the wrong position…From what I could see (read) from afar is that the commission did little to reprimand him for his actions in public. They are as much culpable as Estes for creating an intimidating air in that room.
Once the City welcomes public comment, which was done long-ago with the rules of the City Commission (PDF), it needs to be protected, even if it means standing up to a cohort. And, perhaps as a community, demanding better from our representatives.
Take your First Amendment and…
There was chatter in comments that this is not a First Amendment Right. That originally threw me for a loop, as it goes against civic classes in every Junior High school across the country, but after digging a little, it is a correct position–while at the same time not quite representing the whole story.
Citizens do not have a constitutional right to speak at a local governmental body’s meeting….unless, and here’s the kicker, that local body has invited citizens to participate, at which time a degree of a “public forum” is created and a citizen’s right to speak is protected, albeit with limitations. Those limitations are to ensure that government can function, with limited “disruption”, as we discussed on Tuesday.
So, who defines disruption? What’s to stop a presiding officer from simply claiming everyone out-of-order? Or, worse, applying strict limitations to people with whom they may have a troubled history? There certainly isn’t a lot of clarity on the issue, and from what I can pull from the literature, is one reason the courts caution against strict control of public comment.
What’s an officer to do?
Over at the MyWHaT FB, a reader with experience on the issue of the First Amendment, highlighted a Michigan case and decision where a citizen was arrested for mild use of profanity at a public meeting. The finding helps affirm public comment as a constitutional right:
…it is very clearly a First Amendment issue. For example, in Leonard v. Robinson, the 6th Circuit Court of Appeals stated, “Even those who advocate the most narrow interpretation of the freedom of speech agree that in a democratic forum like a township meeting, the state should abstain from regulating speech….” Leonard v. Robinson, 477 F.3d 347, 357 (6th Cir. 2007). The Leonard Court goes on to note, “In light of this, and of the prominent position that free political speech has in our jurisprudence and in our society, 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.” Id. at 361. “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.”
In Traverse City’s case it would have been interesting to see the officer’s response, if Elisa Barrett had stayed in the building, and arriving well-after being called by the City Manager. If there was no apparent or justifiable disturbance, what would be the grounds of removal? Is it simply up to the Mayor or the City Manager to order removal? According to the rules, someone can appeal the claim that they are being “disruptive, unduly repetitive, or impeding the orderly progress of the meeting“, but it is unclear when and where that appeal takes place. Is it at the podium? After someone’s been removed? And, who do they appeal to?
These are the immediate issues, governed by the Rules of the City Commission and the Open Meetings Act (PDF), the latter of which states that “a person shall not be excluded from a meeting otherwise open to the public except for a breach of the peace actually committed at the meeting” (MCL 15.263 ). Barrett voluntarily left the meeting, so we don’t know if an officer would have agreed with the Mayor’s and the City Manager’s assertion that she was breaching the peace. I don’t believe instant reply is available.
Lesson: Be ready to appeal
Please note, I have no business, expertise, or authority to claim someone’s constitutional rights were infringed. Nor is it my intention to prove so. I think the mayor was technically in his right, but unhealthily within his right. There’s nothing even technically wrong with calling the police, but what happens after that has a lot of uncertainty.
I’m exploring the issue in an attempt to make some sense of the incident and to make a case for restraint among local bodies of government for when they consider something disruptive. As touched on Tuesday, “imagined disruption” is not disruption.
I’m also interested in providing some awareness for others who might stand up to speak and have something similar happen to them. In this regard, another reader (and I have to say MyWHaT readers are whiz-bang smart) pointed out a useful passage from the Rules of the City Commission:
Going forward, perhaps people should be sure to read 14(e). I know if I’m ever up giving public comment now and am in the process of having my comment terminated or limited, I will try the “appeal” idea and see how that works… I imagine that it might actually be kind of fun to cite 14(e) specifically, state that you are exercising the right to appeal the decision of the presiding officer to the entirety of the City Commission because your comment is not disruptive, unduly repetitive, nor is it impeding the orderly progress of the meeting… it would at a minimum, put some people in a very interesting position…
Part of my role in the community is to encourage others to engage. No one asked me to, I just do it. Unfortunately, I hear many replies like the following comment to Tuesday’s post. This began by acknowledging the need to limit unruly public comment, but being uncomfortable seeing the police called, and closing with this passage (emphasis added):
I must say though that part of the reason I didn’t go to the meeting on street food is that I didn’t feel comfortable sitting through a meeting, partly because of how the situation was handled last Monday.
People are turned off by how public meetings are run and the perceived unresponsiveness, indifference, and in this case, hostility (calling the police is a hostile move) towards citizens.
I know from experience and faith that the majority of public officials are not hostile, nor are they indifferent, nor unresponsive. In fact, the majority of local representatives desire more informed engagement and they come to public service because they are dedicated, wonderful, social people with a sense of public good. Many of them even have a sense of humor.
Unfortunately, one negative experience rises to the top and will keep most rational people away for a long, long time.
To wrap: Be nice.
EDITOR’S NOTE: Two accessible resources used to help explore this issue are, Civility in Government Meetings: Balancing First Amendment, Reputations Intests, and Efficiency and Case Note: Constitutional Law – Free Speech – Ninth Circuit Upholds City Council’s Ejection of Audience Member. In addition, the rules of the City Commission, the Open Meetings Act (PDF), and two State Attorney General Opinions 5218 and 5283, the latter two which, I’m told, are defined as persuasive authority, meaning, official cautions that violating the AG’s opinion are at your own risk.
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