It's OK to cuss at a council memberBy Leon Worden
Wednesday, July 29, 1998
"A libelous remark is a privileged remark when uttered in a legislative meeting," says Carl Newton, attorney for the city of Santa Clarita. "If personal attacks (or) profane remarks do not result in a disruption, they must be permitted."
Newton explains that under California law, what a speaker says during a council or other agency meeting, such as a school board, is protected unless it creates a disturbance.
Anyone can say anything about anyone else. You can lie with impunity. Just make sure your comments don't prompt people to yell and scream and throw things. Normal tests for defamation don't apply, and any resulting slander suit would be dismissed whether your remarks are aimed at a council member or another member of the public.
Newton says it's up to the presiding officer (the mayor, school board president, etc.) to determine if the remarks have created a disturbance. Appropriate action could include removing the speaker from the podium or clearing the room and continuing with the meeting.
I don't particularly relish in telling you this. Our council meetings are wild enough as it is.
It's kind of odd that it took the matter of John Steffen vs. City of Santa Clarita et al. to shed light on what can and can't be said in a council meeting. But then again it isn't. Steffen is a gadfly who regularly paints the edges of decorum with his vituperative attacks on council members and developers. Usually he's wrong. He's not exactly the sort of person who evokes much sympathy, and nobody in his right mind would rush to his defense.
That's what makes this such an interesting exercise. What gives the public the right to speak in a council meeting? The First Amendment? Not exactly. If the constitution were the only authority, council meetings would be chaos. Everyone would talk at the same time. Something must enable the council to maintain order.
That "something" is the Ralph M. Brown Act, the same law that says governmental agencies must meet in public.
The Brown Act establishes a mechanism for the public to "directly address the legislative body on any item of interest to the public ... that is within the subject matter jurisdiction of the legislative body."
But don't read what isn't there. The Act says what you CAN talk about, not what you CAN'T talk about.
You can talk about anything. That's where the First Amendment comes in. The Brown Act says you can use an agency meeting as a deliberative forum, but it's the constitution that guarantees your right to discuss whatever you want in such a forum. You can get up and read a John Boston column if you're so inclined.
But only for three minutes. The courts have upheld agencies' authority under the Brown Act to limit the amount of time per speaker or issue. Some cities are more permissive than Santa Clarita and allow 5 minutes per speaker. Some are less so, holding public comment until the end of the evening. Legislative bodies can rule citizens out of order if they disrupt a meeting. In White vs. City of Norwalk, the court held that Norwalk could take adverse action against persons whose "personal, impertinent, slanderous or profane" remarks or "loud, threatening, personal or abusive language ... disrupts, disturbs or otherwise impedes" city council meetings.
Note that it is not the speech that can be halted, rather the disruptive event.
With that in mind, Santa Clarita argued that Steffen "continued to yell and offered repetitive and irrelevant remarks, further causing disruption to the meeting ... (The city) properly sought only to curb the disruption, and did not act pursuant to any ... content-based rule respecting speech."
Why should such speech be privileged? Steffen's attorney argues that any restriction on comments "critical of council members is an unconstitutional infringement on plaintiff's rights to ... engage in core political expression (and violates his) right to petition the government for redress of grievances."
You could argue that Steffen didn't engage in "core political expression," but as long as Steffen thinks he did, the constitution protects him.
Did Steffen's remarks create a disturbance? Mayor Jan Heidt thought they did, so she restrained him. Steffen thought they didn't, so he sued. There isn't always a black and white, where on-the-spot decisions made by human beings are concerned.
That's why we need lawyers.
©1999 LEON WORDEN ALL RIGHTS RESERVED
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