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Commentary: Comment policy does infringe on free speech

December 06, 2013|By Charles Mooney

I have read "Commenting policy does not infringe on 1st Amendment" by Dennis Popp in the Dec. 1 Daily Pilot and would like to offer a different conclusion and correct and clarify some points made in Mr. Popp's letter on Costa Mesa Mayor Jim Righeimer's new public comment process.

Contrary to Popp's letter, Mayor Righeimer's new process, which forces all but 10 non-agenda public commenters to wait until near the end of the meeting to be heard, does seem to infringe on the 1st Amendment right to speak in public comment sessions, as created by the Brown Act [the state's open-meetings law].

Popp incorrectly claims that the mayor of a city runs a business meeting. No, a mayor runs a municipal government meeting.

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Municipal governments must meet regularly in public, and citizens may attend these meetings to express opinions and/or concerns about city decisions and issues. Remember, it is our government, and it is supposed to be government of the people, by the people, for the people.

Next, Popp claims that the 1st Amendment guarantees a right to be free from government restrictions on speech, not the right to speak when and where one prefers. To clarify, according to the First Amendment Coalition, "courts have held that the public comment sessions created by laws like the Brown Act are 'limited public forums'" (White v. City of Norwalk, 900 F.2d 1421 (1990)."

As a result, the public has a 1st Amendment right to speak in public comment sessions. In the case of the Brown Act, this means that members of the public can be subject only to time, place and manner restrictions on their speech that are reasonable and viewpoint-neutral (Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (1997); Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (1996)).

Viewpoint-neutral means the restrictions can't favor any particular attitude or position related to a person or subject.

So does the mayor's new public comment process pass the reasonable and viewpoint-neutral test?

First, is it "reasonable" to force public speakers to come at the beginning of the meeting (6 p.m.) to submit their non-agenda item speaker card and then for many of them, who may have personal or physical limitations, to wait until midnight or longer to actually make their three-minute comment? I think not.

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