Does Yorba Linda Mayor’s ID Rule Violate Free Speech?

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Yorba Linda Mayor Mark Schwing violated the First Amendment rights of a speaker at this week’s City Council meeting when he required the man to give his name before voicing concern over the city’s police service, according to Voice of OC open government consultant Terry Francke.

Schwing interrupted the speaker, who didn’t identify himself as he began speaking, and asked him to provide his name.

“I would state my name, but I don’t feel comfortable or safe stating my name,” the speaker responded.

“That’s a requirement, sir,” said Schwing.

“Okay, my name’s Louis — Louis Smith, how about that?” asked the speaker.

“All right,” replied the mayor, and the speaker expressed concern over the Brea Police Department, which provides police services for Yorba Linda.

It was unclear whether the city has a policy requiring speakers to identify themselves. Yorba Linda’s mayor and city attorney didn’t return messages seeking comment.

But Francke said there’s a First Amendment tradition of addressing government anonymously, and the city can’t require that people give their name in order to speak at a council meeting.

“It’s not a requirement that can be imposed,” said Francke, who is also general counsel of Californians Aware. He added that if the city doesn’t allow people to speak during public comments because they wouldn’t identify themselves, “then that could result in litigation.”

Francke went on to say that decisions by the U.S. Supreme Court have affirmed “that there is a constitutional right to anonymous speech in a public forum.”

“Making self-identification a mandatory precondition of speech in a public meeting is statutorily and constitutionally impermissible without a compelling state interest, which is absent here,” said Franke.

The Yorba Linda city attorney, Todd Litfin of Rutan & Tucker, is responsible for ensuring that the council avoids legal trouble. Litfin was sitting beside Schwing when the mayor insisted that the speaker give his name, but the attorney remained silent.

Francke said there are practical reasons for people to speak without giving their name.

“In certain circumstances, people feel that they are exposed to some sort of retaliation or other unpleasant consequences if they can be identified,” he said.

In one case, officials with the Capistrano Unified School District in southern Orange County were accused of creating an “enemies list” of parents who were involved in a recall campaign, including where their children went to school.

“While that may be an isolated case, it illustrates how easily personal information gathered for an ostensibly benign purpose can be quietly converted to inappropriate, even disturbing purposes by those seeking to retaliate against the exercise of civic rights,” said Francke.

Another legal expert, however, said that it’s unreasonable to expect anonymity when speaking at a city council meeting.

“The practical reality is that you’ll be identified,” said Peter Scheer, executive director of the First Amendment Coalition.

“Withholding one’s name at a public meeting when speaking publicly is not a way to protect your anonymity,” he added.

Francke said speakers who are reporting something as a witness or accusing people should be prepared to identify themselves.

But “if you’re just discussing ideas or proposals or complaints, and it’s the substance of what you’re saying that’s important,” he said, “then why do they have to know your name?”

— NICK GERDA

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