Faced with criticism from residents, the Costa Mesa City Council on Tuesday removed language from a proposed ordinance that cited “unduly repetitive” comments as an example of behavior that could get a public speaker kicked out of a meeting – and potentially charged criminally.
Residents, as well as councilwomen Wendy Leece and Sandy Genis, called it an effort to squelch First Amendment rights.
The new ordinance was required because the U.S. 9th Circuit Court of Appeals ruled last May that the city’s current ordinance is unconstitutional.
In an effort to comply with that ruling, the new ordinance stipulates that a speaker can only be sanctioned if he or she “actually disrupts, disturbs or otherwise impedes” the council meeting.
In drafting the new ordinance, attorneys for the city cited a 1990 federal appeals court ruling that found “unduly repetitive” comments could, at some point, become disruptive.
Mayor Pro Tem Steve Mensinger said that in the big picture the new ordinance will give speakers more leeway than the current ordinance allows. “This is a narrowing of the rules, but it does provide guidelines,” Mensinger said.
Leece, meanwhile, said the city’s replacement ordinance still went way too far.
“We’re chilling free speech. We’re putting our residents on notice as, ‘You better think twice because you might be arrested,’ ” Leece said.
Given those concerns, which were echoed by many at Tuesday’s meeting, a majority of council members ultimately agreed to take out the following three examples from the proposed ordinance:
- Yelling, or using a loud, disturbing voice
- Using profanity or obscene gestures.
- Continuing to speak after being informed by the presiding officer that the comments are unduly repetitive of either prior comments from that speaker or comments by other speakers.
Seven other examples remain, including talking about an issue not under the City Council’s jurisdiction, or speaking to the audience.
The new policy was passed on a 4-1 vote. The no vote came from Leece, who wanted the examples taken out.
Several residents agreed with Leece and Genis that the original proposal was too restrictive, citing speaker behavior such as speaking too loudly or “using profane language” that could get a speaker kicked out of a meeting.
“Some people have a naturally loud voice,” said resident Beth Refakes. “(And) profanity and obscene gestures – they’re free speech.”
Others questioned how the mayor would decide whether a speaker is disrupting the meeting.
“We haven’t defined clearly what a disruption is,” said resident Jay Humphrey. “You do not have either a definition or a way that you actually document that disruption specifically.”
Greg Ridge, another resident, emphasized that the council’s job includes listening to the public.
“This is a public meeting so that you can address and listen to your residents,” said Ridge. “It’s a small price you have to pay. We pay for everything else.”
Some commenters alleged that the council majority has had a double-standard when it comes to speakers, pointing to the on-the-spot approval of a 10-minute presentation by a lobbyist during a contentious charter hearing.
The lobbyist, Kevin Dayton, “was quietly allowed to speak over” without interruption, said resident Tamar Goldmann.
During the February 2012 hearing, the meeting’s first nearly two-dozen speakers, including residents and union representatives, were limited to three minutes of comment. But Righeimer allowed Dayton to speak for 10 minutes.
As for the need for the examples, the council majority said they’re intended as a helpful guide for speakers and the presiding officer.
“This is a business meeting we’re trying to run, and these are just rules to follow,” said Mensinger.
The appellate ruling that forced the change came in a case filed by Benito Acosta, also known as Coyotl Tezcatlipoca, who was forced from Costa Mesa’s speaker podium by police while commenting at a 2006 meeting.
(Click here to read the ruling.)
At that meeting, anti-immigration activist Jim Gilchrist had asked audience members to stand if they supported his position, according to the Daily Pilot.
Then, Acosta made the same request of those who supported his position to end a city agreement for its police to enforce federal immigration law.
The mayor at the time, Allan Mansoor, took the meeting into recess, but Acosta kept speaking until police forcibly removed him from the council chambers.
In its ruling, the appellate court found that while Acosta’s free speech rights weren’t violated, the city’s public comment restrictions were unconstitutional. It went on to rule that the city could no longer ban “personal, impertinent, profane, insolent or slanderous remarks” by public speakers.
Later in this week’s meeting, the council voted 3-2 early Wednesday morning to place a proposed city charter on the November ballot. Leece and Genis opposed.
Members of the council majority said it would save the city millions of dollars in labor costs on construction contracts and make it more difficult to increase pension benefits.
Critics, meanwhile, said the measure was largely the same as the one rejected by voters in 2012, and attacked it as empowering the council majority to avoid public-interest contracting protections under state law.
Both sides of the charter issue are slated to wage a hard-fought campaign leading up to November.
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