Free Speech Restrictions at Auburn City Council Meetings

Free Speech Restrictions at Auburn City Council Meetings

NYCLU Letter to City of Auburn August 15, 2007 Timothy Lattimore, Mayor David Dempsey, City Councilor Matthew Smith, City Councilor William Graney, City Councilor Thomas McNabb, City Councilor John Rossi, Corporation Counsel Office for the City of Auburn Memorial City Hall 24 South Street Auburn, NY 13021 Dear Mayor, Councilors, and Corporation Counsel, Recent articles in the Syracuse Post-Standard have reported that you have been considering resolutions that would limit the manner by which members of the public could address the City Council during the public comment period at semi-monthly council meetings. Articles published on or after Aug. 10, 2007 suggest that you have withdrawn an initial proposal to limit a person from voicing concerns about the same issue more than once every 90 days. We hope that this proposal remains “off the table” as it seems that this might constitute a prior restraint that would not be acceptable even in such a limited public forum as the public is able to avail itself of during your meetings. However a Post-Standard article published on Aug. 10 and an editorial published on Aug. 12 suggested that, as part of an amended resolution, you intend to restrict persons from speaking unless they agree not to discuss pending litigation or make personal attacks. For the following reasons, these provisions of the amended resolution seem troublesome from a constitutional point of view. As a preliminary matter, where a government meeting, such as the council’s semi-monthly business meetings, is open to the public and reserves a “public comment” time for citizen commentary on issues, the “public comment” period is at the very least a limited public forum during which free-speech rights receive heightened protection. As a U.S. Circuit Court of Appeals has explained: “Citizens have an enormous First Amendment interest in directing speech about public issues to those who govern their city.” White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990): During such a public comment period in a regularly scheduled business meeting of a municipal legislative body, an individual should be permitted to speak on a broad range of issues that he/she feels is of public concern, whether it be about a need to fill a pothole, enforce regulations about curbing one’s pet or about the conduct of law enforcement. It is simply not up to the municipal authorities to determine ahead of time which subjects of public concern should be acceptable in such a forum. Constitutional principals and precedent require that restrictions that a government entity wishes to place on public speech must be content-neutral, and this proposed restriction clearly is not. While a restriction to speak only about a clearly understood category of subjects might be more acceptable for a working meeting focused on issues in that category, such a content-based restriction is not acceptable for the public comment period of a regularly scheduled business meeting and would constitute a prior restraint on free speech that would not be acceptable even in this limited public forum. Moreover, the prohibited category of “pending litigation” is much too broad and subject to selective interpretation. Is this to mean all litigation pending in the City of Auburn, the county, the state, etc? Is this to mean only litigation that the City of Auburn is a party to, or only litigation in which the City of Auburn is a named defendant? It is conceivable that there are types of litigation involving the City of Auburn directly that a constituent might want to comment on. While the city councilors and mayor may not agree with such a comment, they are under no obligation to answer the constituent, only to hear them. This does not run counter to any government interest I can imagine. Certainly a person should be able to address the merit of expending taxpayer resources on defending litigation in which the city defended a questionable practice or policy. Such a person should also be able to offer their opinion on whether a plaintiff or defendant’s position had merit. In doing so in this forum, such a constituent would not be interfering with the case, just commenting on it. Consider a police brutality case in which the city were named as a defendant, and a pattern and practice of misuse or abuse of force is alleged. While this case was “pending,” which might be a period of years, would all constituents be barred from commenting on misuse of force by Auburn police officers? Such a restriction would clearly be unreasonable. Consider a personal injury case in which the city were again a defendant, a case in which it was alleged that the city had created an unsafe condition or failed to conduct proper maintenance on city streets or sidewalks. Would all constituents be barred from commenting on the state of their streets or sidewalks, or on the maintenance practices of the city in respect to those areas? This would make no sense. Additionally, absent clear and objective criteria, it should not be up to the discretion of a government body to decide what comments about “pending litigation” would be allowed and what comments would not. With respect to the prohibited category of “personal attacks,” we understand that speakers can be silenced if they are disruptive to a meeting. Disruption has been defined to include far more than noisiness and interference. “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.” Luckett v. City of Grand Prairie (unpublished)(NO. 3:99-CV-1752-L)(N.D. Tex.)(3/21/2001). 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. Accordingly, this categorical prohibition of “personal attacks” is also too broad and subject to selective interpretation. Is this to mean any criticism of a city resident or city official? Is this to mean criticism of individuals or officials outside the City of Auburn? What kinds of criticism about the conduct of an individual or city official or other official would not be considered a “personal attack?” Certainly, a person should be able to comment critically about the conduct or performance of city officials whose pay is drawn from public monies, even about the ethical grounding of their actions or lack thereof. Consider a person who wished to allege misconduct on behalf of a city official. Would they be barred from bringing this alleged misconduct to the attention of the Council and other residents because they wished to do so in the course of the designated public comment portion of a council meeting? Again, this would make no sense, and again absent clear and objective criteria, it should not be up to the discretion of a government body to decide what types of criticism would constitute an impermissible “personal attack” and what would not. Perhaps the most central issue related to the constitutionality of this proposed restriction, however, is the proposal to limit one of the most basic and fundamental rights of any person in the United States – the right to petition the government for redress of grievances. This clause at the end of the First Amendment is a bedrock American principle. The ability to seek redress for perceived wrongs perpetrated by a governmental official or body is fundamental and essential to any semblance of democracy or representative government. It is simply not up to a governmental body to prohibit the voicing of grievances during the portion of that body’s public meetings designated as the proper time and place for the public to seek such redress. Based on the concerns above, we request that you reconsider your proposed restrictions for the public comment period of your semi-monthly City Council business meetings. We ask that you take only those steps necessary to ensure order and decorum that still preserve and protect the public’s right to speak its mind about whatever public issues they are concerned about during these public comment periods. In doing so, we also ask you to make it clear that in this section of your council meetings residents of Auburn and the surrounding area have the absolute right to offer comments aimed at seeking redress from the government for grievances, whether real or perceived. We also ask that you forward to our office a copy of any revised resolutions that may go before the council this Thursday, Aug. 16 or at any time in the months to come, as well as any resolution that is voted on and adopted by the council. You may send such documents to our fax number listed below. Please be advised that should the council adopt the proposed restrictions and then apply them to someone who then contacts our office to complain, we will look very seriously into the circumstances involved to determine whether legal action might be warranted. However, we would strongly prefer it if the City Council chose consider a more constitutionally acceptable alternative to the current proposal. If you should wish to discuss this matter further you may contact me at my office phone listed above. Sincerely,
 
Barrie Gewanter Chapter Director