By Miriam Raftery
Photo: attorney Cory Briggs contends the county’s limits on public comments violate civil rights, free speech rights and open meeting requirements
November 14, 2021 (San Diego) – Last week, San Diego County Supervisors enacted changes limited public input in an effort to address racist and threatening comments made at a recent public meeting. But the new policy goes farther, also eliminating the public’s ability to ask that consent calendar items be fully discussed, severely restricting speaking times and prohibiting group presentations on some topics.
In response, attorney Cory Briggs has sent Supervisors a letter on behalf of the Project for Open Government threatening legal action unless the County revises the policy. While condemning infamous abusive comments recently made in a public meeting, Briggs contends that the new law goes too far and violates both state and federal constitutional rights as well as California’s open government requirements under the Ralph M. Brown Act.
Supervisors’ actions were triggered after Jason Robo made public comments during a meeting suggesting that one supervisor should be hung off a tree, wished harm on a second supervisor, and called the County’s public health officer, who is Black, an “Aunt Jemima.” That speaker was one of an increasing number of public participants who have disrupted meetings with at times, shouting and abusive remarks.
But any road to limiting free speech is fraught with pitfalls, given First Amendment rights and state laws mandating access for citizens to speak at public meetings.
What the ordinance does
- Requires that a statement be read at each meeting on the county’s policy regarding discrimination and harassment;
- Allows adoption of a code of civil discourse developed by the National Conflict Resolution Center;
- Prohibits disruptive conduct including but not limited to loud or threatening language, whistling, clapping, stamping of feet, speaking over or interrupting a recognized speaker;
- Allow the Chair to interrupt and admonish a speaker who violates the rules;
- Limits public speakers to just one minute each if there are 10 or more speakers on any issue;
- Limits group presentations to only land use or adjudicatory matters, and limiting each speaker to no more than four minutes each of the 10 minute maximum;
- Eliminates the public’s right to ask that an item be pulled off a consent calendar for a full presentation and discussion and limits speakers to two minutes no matter how many consent calendar items they wish to address;
- Requires members of the public to bring their own technology to provide presentations;
- Allows the public to continue participating remotely in board meetings.
The policies are slated to take effect starting at the Wednesday, Nov. 16 board meeting.
Arguments for and against the policy changes
Supervisors Nathan Fletcher, Nora Vargas, and Terra Lawson Remer voted in favor of the changes. Supervisor Jim Desmond was not present due to a pre-planned trip. Supervisor Joel Anderson voted against.
Anderson stated, “I condemn the racist and outrageous comments that have been made at past board meetings.” But he added, “I also fear excluding people who rely on us from having a seat at the table.” He said it’s unfair to restrict people who have driven long distances to just one minute to address their elected officials on issues that affect their lives. “We’re allowing the heckler’s voice to force our hand to shut down legitimate input.”
Fletcher said the action was needed to “ensure we can have a safe and healthy environment to conduct the people’s business while allowing full public participation…It’s now time for us to get back to work on the real issues our region faces.”
Photo, right: civil rights leader Shane Harris believes the policy is needed to prevent racial comments from inciting violence and putting public employees at risk of harm
Rev. Shane Harris, President of the People’s Association of Justice Advocates, praised the majority of Supervisors for passing the policy but wants the county to go farther, requesting a review of the statements made by Robo to determine if they overstepped freedom of speech rights. “Racial incitements put county employees and attendees in harm’s way,” he said. ”Ensuring that it is clear that racial incitements are actually violent in nature and therefor put the chambers in danger should bring about consequences for the people who do these acts.”
Briggs says his client condemns speech that is intended to be disparaging, humiliating, intimidating threatening, or hurtful toward others. But he argued in his letter, “Such statements can never be used to rationalize a violation of the law—no matter how objectionable the statements might be.”
Specifically, Briggs contends that:
- Changes to the Consent Calendar and the public’s right to ask that items be fully discussed violate the Brown Act, which requires that the public be able to directly address any item; Briggs also contends this violates California’s Constitution by denying the public the right to hear staff presentations and discussions on Consent Calendar items;
- Time limits imposed on speakers are too restrictive and thus “patently unreasonable;”
- Restrictions on the public’s free speech violate state and federal constitutions, giving too much power to the Chair to interrupt any speaker and be the sole arbiter of what is considered discriminatory or harassing remarks. Briggs says the rules were “rushed” without considering how they might be applied by future chairs who might not be neutral in how the rules are applied. Briggs also says speech is protected legally unless it is a criminal threat or incites violence.
- Language in the ordinance is too vague, including the abbreviation ‘etc.” Briggs contends such drafting would “not pass muster in a first-year class at law school, much less in a courtroom.”
Briggs asked Supervisors to confirm in writing that “violations” identified in his letter will not occur at Wednesday’s meeting, when they are slated to take effect. “If you fail to do so before the next opportunity for public comment,” he warns, “my client will pursue all legal and equitable remedies available to it.”