Balancing the Constitutional Rights of Citizens with the Duty to Conduct Meetings in an Orderly Manner
Re-Printed from Special Districts Magazine 2015 May/June issue
By Sean D. De Burgh, Cota Cole LLP
During the course of their public service, many board members and staff will encounter the displeased citizen who often seems more intent on disrupting the governmental process than contributing to it in any meaningful way. When this scenario is encountered, board members and staff will naturally desire to take steps to control the situation and ensure that the People’s business is not impeded. Notwithstanding this natural inclination, board members and staff must be careful not to infringe upon the Constitutional and statutory rights of citizens. This requires the conscientious balance of these two seemingly competing interests. What legally defensible options are available to districts to preserve order and decorum? What options should districts avoid?
Acceptable Constraints on Public Conduct/Public Comment
Under Article I, section 2, of the California Constitution and the First Amendment of the United States Constitution, citizens enjoy wide-ranging rights to free speech at public meetings. However, legislative bodies are authorized to confine the discussion at public meetings to those matters within their subject matter jurisdiction.(1) From a statutory standpoint, the Brown Act explicitly authorizes members of the public to “directly address the legislative body on any item of interest to the public ... that [are] within the subject matter jurisdiction of the legislative body....”(2) Therefore, boards can limit public comment to those matters that are within the confines of the district’s business. (3) Additionally, boards are authorized to restrict a citizen’s speech if it becomes repetitious or irrelevant, (4) but should be careful not to restrict the speech simply because they disapprove of the viewpoint being expressed.(5)
When considering acceptable constraints on public comment or conduct, it is imperative to understand that the law envisions board members enduring personal attacks from time to time. Citizens who express discontent (even extreme discontent) with board policies or board members’ viewpoints should not be curtailed. Indeed, the Brown Act affirms that the “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” (6) Notwithstanding these legal maxims, when a citizen’s attacks approach the realm of irrelevancy, obscenity, and/or vulgarity, then the remarks may be ruled out of order. Moreover, the Brown Act further provides that if the board determines that individuals are willfully interrupting the meeting by means that prevent the meeting from proceeding in an orderly manner, the board may order the room cleared and continue in session. (7) Boards may prohibit conduct or comment that disrupts a board meeting, and citizens may be ejected and/or arrested for willfully disrupting meetings. (8)
The overall consensus of courts that have addressed these issues is that speakers may be restricted when their actual conduct, as opposed to their words, cause an actual disruption of the public meeting. For example, in Norse v. City of Santa Cruz, (9) the Ninth Circuit held that a citizen’s offensive Nazi salute after public comment had closed did not constitute an actual disruption of the meeting justifying his ejectment and arrest. In comparison, the same Ninth Circuit recently held in Acosta v. City of Costa Mesa (10) that an actual disruption of a city council meeting occurred when a citizen attempted to get members of the public who agreed with his viewpoint to stand, despite the mayor’s order to cease doing so. As another example, discarding a substantial amount of garbage on the schoolroom floor where a school board meeting was being held constituted an actual disruption, not protected speech. (11) The use of profanity in and of itself will usually not constitute an actual disruption unless it rises to the level of being irrelevant and repetitious. (12)
Unacceptable Constraints on Public Conduct/Public Comment
The principles cited above make clear that restricting speech at public meetings on the basis of content is improper. The focus is properly on how the viewpoint is being expressed, as opposed to what viewpoint is being expressed. These same principles also decree that care must be taken when determining whether a citizen’s conduct has actually disrupted the meeting and restrictive measures need to be employed. Some situations may present close calls requiring careful consideration. But are there any bright lines that boards should ensure they do not cross? The authorities cited herein have all addressed situations where the legislative body has responded or reacted to comments or conduct of citizens at public meetings. Absent extraordinary circumstances (e.g., death threats or threats of violence), boards should ensure that citizens are not banned or restricted from attending future public meetings. To do so would be denying use of a public forum in advance of the actual expression, which runs counter to established First Amendment principles. (13)
Board Policies Regarding Order and Procedure
Board members and staff should know in advance how best to address disruptive behavior at board meetings. Not knowing how to effectively address these issues when they arise may subject the district to unnecessary risk and can be an embarrassment to the community at large, as these types of cases often garner unwanted publicity. To this end, districts should thoughtfully craft rules of order and procedure that comply with established Constitutional and statutory law, and stay attuned to the ever-developing jurisprudence, which endeavors to balance these important issues.
1 White v. City of Norwalk (9th Cir. 1990) 900 F.2d 1421, 1424-1426
2 Gov. Code, § 54954.3(a) [emphasis added]
3 See also 78 Ops.Cal.Atty.Gen. 224 (1995)
4 See White v. City of Norwalk, 900 F.2d at p. 1425
5 Baca v. Moreno Valley Unified School Dist. (C.D. Cal 1996) 936 F.Supp. 719, 727-728
6 Gov. Code, § 54954.3(c)
7 Gov. Code, § 54957.9
8 See Penal Code, § 403
9 Norse v. City of Santa Cruz (2010) 629 F.3d 966, 976
10 Acosta v. City of Costa Mesa (2013) 718 F.3d 800
11 McMahon v. Albany Unified School Dist. (2002) 104 Cal.App.4th 1275
12 See Dowd v. City of Los Angeles (C.D. Cal. 2013) 2013 WL 4039043 *21
13 Baca, 936 F.Supp. at p. 727
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