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Brevard County: Called It! We Saw This Coming From Miles Away.

After last week’s Brevard County Commission meeting, there was a sense that people wanted the Commission to “do something,” in the case of Bryan Lober and his reprehensible remarks he has made to people. People are rightly upset with some of the things that Lober has said and at the meeting, some called for a censure or Lober. Some people called for his removal from the Vice Chair position. Some called for his resignation.

And then there were those who called for “more civility” and “rules to support more civility.”

We suspected then that there would be those who would want to restrict the rights of people and their speech.

We were right.

Commissioner John Tobia has led off with a proposal that, according to the FloridaToday:

The current version of Tobia’s proposed policy has these provisions for conduct during County Commission meetings for members of the commission, county staff and the public:

• No speaker may attack the personal character of any individual, including, but not limited to, calling into question their integrity.

• No speaker may label another individual pejoratively, including, but not limited to, applying labels such as “racist,” “bigot,” “misogynist,” “sexist,” “criminal” or “evil.” Tobia said this provision should not be interpreted as preventing a speaker from labeling a policy or general idea that way.

There are constitutional issues – major constitutional issues – with these proposals.

First, for the most part, the government may not restrict speech based on the content of what is said. The government can place what is called “time, place and manner” restrictions, but not restrictions on what is said.

Tobia’s proposal on the “personal character” gets into further trouble not only because it is a content based restriction, but because it is what called “viewpoint discrimination.” The proposal says that you cannot say anything negative about a person’s character, but it doesn’t say that you cannot say anything positive about them.

To be “viewpoint neutral,” the Commission would have to bar resolutions, awards, certificates of recognition, or even compliments to staff members or the public.

In what would be the oddest twist of fate that we can remember in a long time, under Tobia’s proposal, the people that said that Lober’s comments were beneath the dignity of a Commission and called his suitability for the Commission seat into question (as we have done here on this blog) would be prevented from speaking or expressing those thoughts. They would be shut down and removed. The people that walked to the podium that night and expressed how wonderful they feel Lober is and what a great guy he is would be allowed to speak.

Tobia’s proposal would result in “nothing negative can be said – only positive comments.”

Another effect of this is that the proposal cuts off people’s opinions – opinions that are protected speech:

The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject’s feelings or diminish their reputations.

Tobia then proposes that people not label another “pejoratively.”

Pejorative is defined as:

a word or phrase that has negative connotations or that is intended to disparage or belittle :
a pejorative word or phrase

In November of 2018, the Brevard County School Board approved a settlement between it and a woman named Carol Tolx who had accused Ziegler of sexual harassment and retaliation against her in the workplace. An investigation into Tolx’s claim on sexual harassment resulted in a finding that Ziegler’s actions did not rise to the legal standard of sexual harassment, but other claims were upheld. The School Board settled with Tolx for $55,000.

Under Tobia’s proposal, one could not call out Ziegler as being unprofessional, or in his actions toward Tolx, a “creep.”

Sorry. Can’t do it. Can’t say your opinion on people that cost taxpayers money.

If Kristine Isnardi’s husband is convicted of the crimes of which he is accused, Tobia’s proposal would censor people from saying “David Isnardi is a criminal.”

Perhaps even worse, Tobia seems to be saying that if he were around in 1776, he’d want this stricken from the Declaration of Independence:

A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Sorry. Can’t call King George a tyrant. Can’t say that he is “unfit to be the ruler of a free people.”

In short, you can’t speak out and tell the truth.

You couldn’t speak up and tell the emperors on the dais that they have no clothes.

Tobia’s proposal went further:

• All questions or comments by the public must be directed at the County Commission chair, currently Kristine Isnardi.

• All questions or comments by a commissioner must be directed to the chair, the county manager or the county attorney, or their designated representative.

• If a commissioner wants to address a member of staff other than the county manager or the county attorney, permission may be requested of the chair.

• If a member of the public wants to directly address a commissioner other than the chair or a member of staff, permission to do so may be requested of the chair.

• If a commissioner wants to ask a question of a member of the public, permission must be requested of the chair. If the request is granted, the chair would ask the member of the public whether he or she wishes to be questioned. If the member of the public consents, the commissioner making the request may

proceed. Any time used for the questioning would not count against the member of the public’s allotted time for public comment.

All of these things are part of Robert’s Rules of Order – the rules that govern the Commission meeting to begin with.

Why is there a proposal to codify “new” rules rather than Commissioners demanding that the Chair enforce the rules as currently written. Why are we even looking at restating what is already written?

Could it be that Brevard County has Chairs that don’t know or follow the rules to begin with?

For example, at last Tuesday’s meeting, Chairperson Kristine Isnardi cut people off who were commenting not because of an expiring time limit, but because of what they said. She interrupted some people who used a curse word or some other word she did not like. When the people were making their comments in the proscribed time, place and manner, they have the floor. Isnardi did not have the right to cut them off because they used a term or word of which she did not approve.

As far as the speech itself, (the curse words,) the Supreme Court has already ruled on that.

In a case called Cohen v. California, a person by the name of Paul Robert Cohen was convicted of a crime for wearing a jacket that said “F*** THE DRAFT.” The arresting officer claimed the jacket was offensive to people and likely to incite violence. The Court overturned the conviction and found both contentions to be unConstitutional.

The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U.S. 357, 375-377 (1927) (Brandeis, J., concurring).

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” Winters v. New York, 333 U.S. 507, 528 (1948) (Frankfurter, J., dissenting), and why, “so long as the means are peaceful, the communication need not meet standards of acceptability,” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

And:

For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. (emphasis ours)

We would never say that a person should get up in front of a Commission, Council, or Board and curse at the members or use curse words in general. In our opinion, such language often results in not only the people on the dais turning their ears off, but also audience members as well. The language is often counter-productive to accomplish the goal of convincing people. However, just because we think you shouldn’t, does not mean you legally can’t.

Just because a curse word offends a member on the Commission doesn’t mean the Commission can ban the word, or stop the speaker – unless of course you are Chairperson Isnardi.

Where were the other Commissioners who should have been speaking up for the First Amendment? For the right of Free Speech? Did they suddenly go to sleep or was it a case of they didn’t want to ask another member of the Commission to follow the law?

What we find extremely bizarre in this whole mess (besides the fact that there will be people who support the restriction of protected speech) is that two of the most outspoken Commissioners on the “civility” issue – Commissioner Smith and Commissioner Tobia – have a history of being less than “civil.”

In 2017, Smith said of Tobia:

Tobia is “like a little dog, nipping at your ankles,” Smith said. “His rants are boorish. He just likes to stir things up, whether they were true or not. To me, he’s irrelevant.”

In his comments at Tuesday’s County Commission meeting, Smith implied that Tobia has “a vindictive, vicious attitude that wants to discredit your name. Mr. Tobia has repeatedly conducted himself in a manner that I consider — and this is all in my opinion — to be a discredit to this commission.”

“We don’t have an ordinance to censure despicable behavior,” Smith said. “I think a censure ordinance is in order. Mr. Tobia continues to act in a way that I consider a disgrace to this commission. I’m discouraged that I have to do this. I tried not to do it for five months. But his conduct forces me to do it. And that’s unfortunate. Hopefully, Mr. Tobia will clean up his program, and he’ll stop making personal attacks.” (emphasis ours)

After Jim Ridenour, chairman of the advisory Brevard County Tourist Development Council, labeled Representative Randy Fine’s bill on the lagoon as being “criminal,” Tobia sought to censure Ridenour with no legal means of support to do so.

Concerning the same bill, Smith attacked Fine with Smith saying Fine “is shortsighted and long-winded. He doesn’t know what he is talking about.”

“Don’t do as I do, do as I say,” seems to be the motto of some Commission members. While Smith and Tobia went at each other in the light of the “civility pledge” within the Commission chambers in 2017, last week Isnardi was showing her (lack of) commitment to the oath of office she and other Commissioners took to support the Constitution of the United States and the State of Florida.

The Supreme Court has said that content based restriction have the effect of removing unpopular speech and ideas from the public discourse.

Furthermore, in Consolidated Edison Co. v. Public Service Commission, the Court ruled:

The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The answer to speech that we don’t like is not government restriction on that speech. The answer is more speech. The answer is more voices popping up and being heard. Generally speaking, the answer is not and should never be government restriction of what a person can say, their opinions, and their viewpoints.

To say otherwise is to go down a slippery slope where the only speech and ideas allowed in front of the Commission is speech of which only five people approve.





6 Responses to “Brevard County: Called It! We Saw This Coming From Miles Away.”

  1. Thomas L Gaume says:

    Great article.

    “I may not agree with you, but I will defend to the death your right to make an ass of yourself.”
    ― Oscar Wilde

  2. Michael Reitano says:

    We may not agree 100% of the time but you hit the proverbial nail on the head here

    • AAfterwit says:

      Michael Reitano,

      Thanks for the comment.

      We went back and looked at your comments and where we disagreed.

      Funny thing is that we didn’t find any instance where either of us (you and the staff here) felt the need to denigrate the other when we disagreed. Neither felt the need to curse, to call each other names, or anything.

      Wish other people would see that and learn from it.

      Thanks again.

      A. Afterwit.

  3. Marie says:

    Are most elected officials prone to this type of illogical, arrogant, ignorant, and sometimes unlawful behavior, or is this a contagious disease contracted after the votes are counted and they are seated on the dais with others of like mind? As these symptoms appear, most pointedly, after the election.

  4. Pam LaSalle says:

    If this proposal were to pass, which it shouldn’t, maybe Brevard would create a new elected position for County Censor.

  5. Randy Wickens says:

    After watching the recent County commissioners meeting, for a fleeting moment I felt sorry for commissioner Isnardi,speaking about “threats” of sexual violence against her..no one should ever have to fear such threats…BUT then I heard the rest of her statement regarding her chief of staff…”Vic” many of her constituents spoke about the threats/harassment they have received from him..her reaction was..” I speak to him, he calms down for awhile”….later commissioner Isnardi stated “he defends me” “what am I supposed to do?”….well as one of your constituents who has had his life and families’ life threatened by him…..FIRE HIM!!!!!! This politician has already shown a complete lack of integrity…but to continue to allow her staffer to threaten/harass her own constituents without any repercussions, shows her character more than anything else…

  6. […] Tobia has stepped back from provisions that would have affected the rights of the people. As we detailed the other day, no one has the right not to be offended and certainly the Board cannot censor speech (generally […]

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