Re: “Conduct city business with order and civility” (My View, March 28, Tallahassee Democrat).
Mike Sittig is right. Local government commission meetings should be conducted in an orderly and civil manner, and people should refrain from “launching off-topic personal attacks and spreading rumors about elected officials” at a public meeting.
But to the extent the My View was about the City Commission’s “audio kill switch” policy, it was out of focus in its discussion about free speech rights.
My fellow Leadership Florida alumnus talks about the First Amendment right in the abstract — as in, whether people can say this or that. His examples of permissible restrictions on speech are taken from an irrelevant context.
The kill switch involves a more narrow and discreet application of the First Amendment called the “public forum doctrine.”
The public forum doctrine comes up in Tallahassee every time a religious group seeks to erect a creche or menorah at the courthouse. It caused the state to have to allow an arrangement of Pabst Blue Ribbon beer cans to stand in the Capitol this past Christmas season.
A government is not obligated to allow people to post banners or erect monuments, signs, memorials or religious symbols on its property, or to speak through its microphone. But if the government chooses to allow such speech, the public forum doctrine forbids the government from discriminating in favor of one religion over another, in favor of one viewpoint over another, or against speech the government does not like.
The doctrine applies if the government sets up an open mike at a commission meeting. In writing a policy on citizen remarks, the City Commission is implementing a new Florida law, section 286.0114 of Florida Statutes, which requires the public to “be given a reasonable opportunity to be heard on a proposition” pending before any local board. The issue of whether people had a right to speak at public meetings — which are legally required to be open to the public under the Sunshine Law — had festered in for years.
The issue arose only because a few obnoxious local government boards had refused to allow anybody to comment about anything, ever, period. The chair of a local special district in Pensacola resented the public so much that he turned his back to the audience at meetings.
The Legislature has now required all local governments to operate a public forum at every meeting. The public forum doctrine still allows the local government to restrict speech in many ways. For instance, the government may limit the content of speech in a particular public forum to a particular topic. Thus, the city may require all comments to be germane to an item on the agenda.
The city may forbid profanity or disorderly conduct. The new statute says it “does not prohibit a board or commission from maintaining orderly conduct or proper decorum in a public meeting.” Anyone who yells or talks out of turn may be ejected from the meeting.
But any written policy restricting the content of remarks must be specific and objective so that it is not an open invitation for a mayor or commissioners (or their proxy) to hit the kill switch any time there is criticism. A policy forbidding “personal attacks” falls short of the mark.
In saying a local board or commission may enact “rules or policies” that “govern the opportunity to be heard” at meetings, the new Florida law says any such “rules or policies” must be “limited to those that” concern how long a speaker may speak; whether one speaker must be selected to speak for an entire “group or faction on a proposition”; how to sign up to speak; and what “period of time” is designated for public comments.
A local government’s policies may address only these objective topics, which do not regulate the content of a speaker’s remarks. In four wordy paragraphs of matters the city may enact “rules or policies” to control, nowhere does the law say anything about personal attacks, civility, slander, courtesy or political correctness. The statute is thus carefully drawn to comply with the public forum doctrine.
In writing a policy to implement the new law, the Tallahassee City Commission should look again at the law. And people who speak should follow Mike Sittig’s advice about decorum — voluntarily.
Robert Rivas, a Tallahassee-based appellate law specialist, has handled First Amendment cases in Florida and other states for 23 years.