Taking Public Bull by the Horns
By Carolyn Schuk

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"Following a costly study, the Humboldt County Board of Supervisors has decided to tap an abundant Humboldt County resource–public bloviation–and will charge for public comment as a way to shore up the General Fund," reported a cover story at Mad River Union newspaper last month. "The fee would generate nearly $1.74 million yearly."

It was just an April Fool's joke in the Arcata, Calif. newspaper. But one reason it's funny is that it speaks to something anyone who has ever attended a public meeting can attest to: strident public bloviators who drown out meaningful discussion with endless commentary on a multiplicity of agenda items and their views on everything from garbage cans to flying saucers.

Since video cameras entered legislative chambers, public commentary time also offers opportunities to run political campaigns on the taxpayer dime. Some speakers appear like clockwork at every meeting starting three months before Election Day and disappear just as predictably afterwards. Others regularly use the podium to make endorsements and position themselves for future election.

Some say it's a necessary consequence of democracy. But there's no Constitutional right to public comment during the meetings of governing agencies. "Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues," the U.S. Supreme Court ruled in 1984.

But while California’s public meeting law gives everyone the right to speak at local public meetings, the Brown Act, also lets public agencies establish rules for civil and orderly meetings (Calif. Gov. Code 11125.7).

This includes–but isn't restricted to–limiting the time for public comment on specific agenda items, limiting speaker time and restraining disruptive conduct.

In addition, governing bodies don't have to allow public comment on agenda items that were previously considered at public meetings where the public had opportunities to comment. Nor do they have to listen to commentary on topics that aren't within the body's jurisdiction, the California Attorney General ruled in 1995.

Disruptive conduct doesn't have to be physical, say courts. Personal, profane and slanderous remarks, speaking too long, irrelevant commentary and excessive repetition can all be considered disrupting a meeting if they impede agencies' ability to do business reasonably efficiently or obstruct other people's rights to speak. (White v. the City of Norfolk, Norse v. City of Santa Cruz).

Central to this power, however, is a requirement that public meeting rules be viewpoint neutral. Policies and rules based on content have been invalidated by courts. One school district prohibited criticism of school officials on the grounds that such comments constituted confidential personnel discussions. (Baca v. Moreno Valley Unified)

The City of Santa Monica, for example, has very specific rules of conduct for its meetings. (santa-monica.org/departments/council/content.aspx?id=2415)

One is that "... members of the public do not have the right to give testimony outside the scope of or unrelated to the agenda item under consideration," and "members of the public should strive to avoid unduly reiterating their own or others’ testimony."

Santa Monica is also specific about how long members of the public can command the attention of their fellow citizens. "Except on Written Communication, members of the public shall limit their remarks to two minutes per agenda item unless the City Council grants additional time by majority vote," and, "A member of the public wishing to speak on more than one item shall limit his or her remarks to a total of six minutes per meeting unless the Council grants additional time by majority vote."

Newport Beach and the Orange County Board of Supervisors are among the local governments that have instituted similar rules.

Some will say this is anti-free speech. But others will call it a precaution against the antithesis of free speech, mob rule.