By JW August, journalist and Past President of Californians Aware
It seems like the Los Angeles City Council doesn’t like the public asking too many questions.
That’s according to two long-time council watchers, who say that’s especially the case if the subject is controversial or casts the council in a bad light.
Reporter Daniel Guss covers council hearings for CityWatch and other news organizations. He spoke to us for this article, along with Los Angeles attorney Daniel Wright, who is troubled by a council rules change he says “appears inconsistent with fundamental First Amendment principles.”
They both say the council decision to ban certain speakers from future City Council meetings is just another example of the 15-member board imperiling the public’s free speech rights. The board, on the other hand, argues some speakers are out of control, disruptive and obnoxious, and need to be removed from hearings so the Council can take care of the city’s business.
The new ban is aimed at any speaker/citizen who is determined to have disrupted a City Council meeting or one of its committees. The punishment is determined by the Council President or a Council Committee Chair. The “disrupter” can be banned from three to six future meetings. The rule will become effective Jan. 1, 2019.
Wright says it’s wrong for the “City Council President to unilaterally determine whether a person has disrupted a Council meeting” and claim authority to impose what he says is a prior restraint on fundamental speech rights. He adds, “Because the disruption rule has no standard or a right to appeal the Council President’s unilateral decision before imposing the prior restraint of speech, it runs afoul of First Amendment principles.
Guss cites an example played out in the council chambers the day after the ban was passed. He reported witnessing members of a powerful city union crashing the Council meeting, disrupting a discussion, and not filling out the speaker slips required by council procedures. And nothing was done. No one was threatened with ejection from the meeting. In fact, the council president reopened the public comment period for the union members. Guss says this never happens for citizens attending the council hearings.
Quoting from his article about that meeting, the reporter noted the disruption was by union members “who oversee major campaign cash donations and election-time phone banking efforts.”
Attorney Wright points to a risk of “content-based speech discrimination,” exemplified by the Council President when he chooses to ignore the disruption rules for his union campaign contributors “while choosing to find other persons who have not donated to his campaign to have been disruptive for the same or similar conduct.”
The attempt by any government agency, even the Los Angeles City Council, to use prior restraint has been rejected by the courts. If you recall the movie, “The Post,” it centered around the effort by the U.S. government to halt publication of the Pentagon Papers, which revealed the government’s unvarnished history of the war in Vietnam. The Supreme Court ruled this attempt was prior restraint and violated the First Amendment.
More recently and closer to home, a federal Ninth Circuit Court of Appeal case recently found that Seattle City Council rules permitting a meeting disrupter to be banned indefinitely from City Hall was unconstitutional. In issuing a permanent injunction against such “disrupter speech punishment rules,” the Ninth Circuit observed the City Council has a less restrictive means to keep order: eject the offender for the remainder of the meeting he or she is disrupting. Some observers expect the City of Los Angeles to be sued by the ACLU or another civil rights organization for not following this Ninth Circuit guidance.
History has shown the members of the Los Angeles City Council “have a long track record of not supporting open government or the First Amendment,” says Reporter Guss. For example, the reporter has observed over the years the City Council has progressively reduced public comment time to thwart its effectiveness.
In the past, the rules allowed speakers three minutes to address the Council on an item of business; then it was two minutes; now it’s one.
Guss also says the council has a tradition of trying to hide its business to avoid embarrassment or ridicule, and has a preference for the public being left out of the city’s decision-making.
In his ongoing coverage of the Council, the reporter has seen revised or new agenda items distributed to council members at the start of a meeting and a notice about the agenda item then tacked to the corkboard outside the council chamber to comply with public notice requirements. This is done so the public has little time to review or even determine what the item is about, he says.
Wright is suing the city over a rule that requires anyone wishing to speak on more than one topic to do so at the beginning of the meeting, well before the actual item is presented to the council and debated. He notes that the council members will ignore these speakers, talk to staff or leave the room. And the speakers can’t address the council again when the agenda item is eventually taken up, he says.
Guss observes that when some “disturbers” are scheduled to speak on an agenda item they’d better not leave the chambers for a phone call or use the bathroom. If they walk out, there’s a good chance their name will be called to speak. If they are not present, they are out of luck.
One of the most notorious examples of the Council’s attitude towards public participation occurred in the mid-1980s when it voted to give members a 10 percent pay raise at the close of a Council meeting. There was no description on the agenda and the Council approved it without a discussion. Their behavior was so egregious it led to the Brown Act being amended.
Wright adds that, with an annual salary of more than $185,000 each, Council members are well paid, more than any City Council in the nation, to listen to citizens with “strong opinions about their job performance and related matters.”
He added, “The use of the government’s power to purport to authorize selective punishment of those who dare to criticize the Council or city officials is not a legitimate execution of their duties to listen to public comment at meetings.”