Two Costa Mesa councilwomen are publicly criticizing a proposed city ordinance that bans “unduly repetitive” public comments, calling it an attempt to restrict the free speech of residents.
Under the proposal, which is up for a vote tonight, speakers at council meetings who the mayor sees as causing a disruption by repeating themselves or others could be ordered to leave the meeting and, conceivably, be charged with a misdemeanor if they refuse.
“I have real concerns about it because over the past year I’ve seen a concerted effort to restrict the ability of the public to participate,” said Councilwoman Sandy Genis, a member of the council minority.
“It’s the 4th of July on Friday, and what’s this about?”
Councilwoman Wendy Leece called the proposed ordinance “offensive” and said it is an example of Mayor Jim Righeimer’s “open disdain for the people who don’t agree with him.”
“He definitely does not like to hear negative comments from Costa Mesa residents that oppose something the council is doing,” she added. “This is another attempt to silence those people.”
Righeimer and Mayor Pro Tem Steve Mensinger didn’t return calls seeking comment, while Councilman Gary Monahan declined to discuss the proposed ordinance.
“I don’t have any comment,” Monahan said, before hanging up on a reporter.
If approved, the new ordinance would make it a misdemeanor to engage in “disorderly behavior that actually disrupts, disturbs or otherwise impedes the orderly conduct of any city council meeting.”
Such conduct would include acts like throwing things, yelling, using profanity or obscene gestures.
But No. 8 on the list of don’ts is: “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.”
(Click here to read the proposed speaker policy.)
The policy change stems from a recent appeals court ruling that found Costa Mesa’s public comment policies to be unconstitutionally restrictive.
That lawsuit was filed by Benito Acosta, also known as Coyotl Tezcatlipoca, who was forced from the podium by police while commenting at a 2006 meeting.
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 a ruling last year, the U.S. 9th Circuit Court of Appeals found that while Acosta’s free speech rights weren’t violated, the city’s public comment restrictions were unconstitutional.
The appeals court ruled that the city could no longer ban “personal, impertinent, profane, insolent or slanderous remarks” by public speakers.
The newly proposed policy would instead prohibit people from behavior that “actually disrupts, disturbs or otherwise impedes” the council meeting. It cites “unduly repetitive” comments as an example.
First Amendment advocate Peter Scheer had serious doubts that commenters could legally be silenced for simply repeating what earlier speakers said.
“They can’t shut you up unless you’ve either caused an actual disruption…or it’s reasonable to see that unless pre-emptive action is taken that a disruption will ensue,” said Scheer, executive director of the First Amendment Coalition.
Another free speech advocate, Terry Francke, said the 9th Circuit has found that government bodies can rule that a speaker is out of order “for being unduly repetitive, talking off topic or otherwise wasting the time of the body and other speakers.”
“And if the speaker ignores the chair’s warning he or she can be removed from the meeting,” added Francke, general counsel for Californians Aware. “These rules can always be abused, of course, but that’s what makes smartphone cameras so useful—to document just what went on.”
Meanwhile, there doesn’t seem to be a clear-cut definition for when a speaker’s repetition becomes “actual disruption.”
“Of course the point at which speech becomes unduly repetitious or largely irrelevant is not mathematically determinable,” the 9th Circuit found in a 1990 ruling.
The ruling continues:
The role of a moderator involves a great deal of discretion. Undoubtedly, abuses can occur, as when a moderator rules speech out of order simply because he disagrees with it, or because it employs words he does not like. [But] speakers are subject to restriction only when their speech ‘disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting.’
In Costa Mesa’s case, Leece says the proposed rules are aimed at speakers the mayor doesn’t like.
“The bottom line is that the mayor just doesn’t like to hear negative comments,” she said. “It would be a way to have the power to limit those if someone was saying the same thing [that] someone else said.”
“Sometimes we hear criticism,” added Leece. “But this is America.”
Tonight’s council meeting starts at 6 p.m.