As many of our readers know, we have been talking about Cocoa Beach’s “rules” that don’t allow for “negative personal comments.” The despite the rule being UnConstitutional, the Commission decided to let the rule stand and to task the City Clerk with finding “best practices” for meetings and report back next year. (Apparently it is acceptable in Cocoa Beach to say “we don’t care about your rights but we’ll get back to you in a year.”)
However, it is not only the Commission that has rules that limit “negative personal comments.” The Boards of the City have the same or similar rules in place. The fact that the Commission did not remove their rules on speech left Boards to do the same.
One such board is the Planning Board.
This past week on February 6, the Planning Board held their first meeting since October of 2016. When reviewing the policies and procedures of the Board, a board member asked about the very thing we have been talking about – whether the Commission and therefore Boards could limit the content or viewpoint of what the public speaker was saying. As the member was asking the question, Chairman John Byron of the Board interrupted him several times as Byron is prone to do throughout all meetings in which he participates.
Byron then said (starting at about 29:40:)
Byron: For four years…eh…eh….It has been my practice and I would hope to continue it to be big and easy, pretty open when people comment but when they start making disparaging remarks about individuals that falls under the part of state law that under “b” says The chair has authority to maintain orderly conduct and proper decorum and to rule a speaker out of order should comments depart from the proposition before the board. Attacking Zach Montgomery is not the proposition before the Board and so state law says I can rule them out of order. This is meant to express this a bit more. On “c” and d it would be my hope to gently and on “b” as well on er a rather on “a,” “c,”. and “d,” it would be my hope to gently ease people in the direction of goodness and light rather than hammering them down and saying ‘get out of here.’ It’s a balancing act… you’ve seen it…
Marsha Segel George: Oh yes, way too many times…
Byron: But all the way through the Supreme Court bodies have the right to specify, to be specific about time, place and method of free speech. And that’s what this does. So that’s my answer to it. And if ever I do something that the Board doesn’t like, there are procedures in Robert’s Rules to appeal the ruling of the chair and if the votes, you override it.
Where to begin?
…..when they start making disparaging remarks about individuals that falls under the part of state law……
We suspect that Byron is talking about Florida Statute 286.0114 Public meetings; reasonable opportunity to be heard; attorney fees which says in part:
This section does not prohibit a board or commission from maintaining orderly conduct or proper decorum in a public meeting. The opportunity to be heard is subject to rules or policies adopted by the board or commission, as provided in subsection (4).
It is easy to think that “decorum” means “being polite” or “having manners.”
It does not.
(Heck, if it were required that people adhere to some ever changing standards of “manners,” shouldn’t Byron throw himself out of the meetings? Shouldn’t Byron discipline himself for constantly cutting off and interrupting other people who have the floor?)
If “decorum” meant “manner,” meetings would be run based on some nebulous idea of “etiquette.” Meetings would be akin to asking whether it is proper for one to eat fried chicken with knives and forks rather than with fingers.
(As an aside, Gainsville, Florida has an ordinance on the books that requires people in public to eat fried chicken with their fingers. The ordinance was passed as a joke and as a way of attracting attention to Gainsville declaring itself to be the “fried chicken capital of the world.” That hasn’t prevented someone from being “arrested” for eating with a knife and fork. (The arrest was a joke as well.))
“Decorum” in the case of the Florida statute is something that prevents the board or commission from completing the work it is tasked to do.
“Decorum” has nothing to do with the viewpoint of what someone says. (There are exceptions for obscenity, etc, but that is not in play here.)
…. under “b” says The chair has authority to maintain orderly conduct and proper decorum and to rule a speaker out of order should comments depart from the proposition before the board. Attacking Zach Montgomery is not the proposition before the Board and so state law says I can rule them out of order. ….
Let’s be clear here: Florida law says no such thing.
….But all the way through the Supreme Court bodies have the right to specify, to be specific about time, place and method of free speech. And that’s what this does. ….
No, what “this does” is give a preference to one viewpoint over another.
Notice that Byron does not say that he will prevent or “gently ease people in the direction of goodness and light” if the comments were positive in nature. So when, as often happened, Byron, other Boards and Board members said to Montgomery, “good job,” Byron thinks he has the ability to believe that positive comments on Montgomery (or anyone) are allowed, but negative comments are not.
If you allow one viewpoint on something, you have to allow other viewpoints on the issue. If Byron wants to stupidly assert that negative comments on an issue are not part of what the Board is discussing, but positive comments are, that just goes to show you how off the deep end his point of view is.
(In a moment, we’ll get back to whether comments on a person are germane to an issue.)
In 1991, the Supreme Court ruled on a case called R.A.V. v. City of St. Paul.
At issue was an ordinance that banned speech or actions that “arouses anger, alarm or resentment in others.”
The Supreme Court found that the ordinance was overbroad. It went too far.
The Court ruled:
…that the government may improperly try to use content or viewpoint discrimination to drive certain ideas out of the marketplace. In addition, government suppression of controversial viewpoints threatens the role of free speech in checking abusive government practices that might otherwise go unchallenged. Viewpoint discrimination also makes it difficult for citizens to engage in effective self-government by preventing them from hearing political speech that contradicts the government’s position and prevents citizens from ‘‘blowing off steam’’ by expressing their views under the ‘‘safety valve’’ rationale for the free speech clause.
We would argue that “driving certain ideas out of the marketplace” is exactly what the Commission and Boards want to do. They don’t want people disagreeing with ideas they like or saying the emperor has no clothes.
In the case of a board like the Planning Board or Board of Adjustment, how many times have we heard when looking at proposals, variances, plans, etc, “you should pass this because ‘Joe Blow’ is a good guy that I have known for 20 years.”
Yet according to Byron, a person who wanted to say that they too knew “Joe Blow” and thought he was the slime of the earth would not be permitted to speak.
Byron never makes the distinction that in a quasi-judicial hearing like the ones the Planning Board and the Board of Adjustment hold, you could never disallow negative comments.
If you remember, one of the constant themes presented during the Ocean Dunes hearings was that the builder was a great guy and a great member of the community. If you allow that to be said, you have to allow the opposite.
Can anyone imagine a case in a court where the judge would not allow negative comments about a witness? Yet that is precisely what Bryon proposes and believes he can do.
Byron: But all the way through the Supreme Court bodies have the right to specify, to be specific about time, place and method of free speech. And that’s what this does.
Is followed by:
Byron: It’s a balancing act… you’ve seen it…
Segel-George: Oh yes, way too many times…
This explanation did not help at all Byron’s (and now Segal-George’s) position and beliefs. If anything, it showed that Byron and Segal-George aren’t applying the laws and the Constitution.
Board and Commission meetings are limited public forums.
First Amendment protections of speakers’ rights to speech and assembly vary based on the speakers’ chosen forum. The Supreme Court breaks down forums into three types: traditional public forums, designated forums, and nonpublic forums. See Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983).
The government may limit access to a designated public forum to certain classes or types of speech. In these “limited forums,” although the government may discriminate against classes of speakers or types of speech, it may not exercise viewpoint discrimination.
We agree that the Supreme Court has held that there can be time, place and manner (not method) regulations. When the government, in this case the Commission and Boards, establish a forum in which to hear the public on certain topics, they cannot then make rules that are willy nilly. In a limited public forum, if the government is going to make rules, those rules have to pass what is called “strict scrutiny.”
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.
Therefore, when Bryon says and Segal-George agrees that “it’s a balancing act,” they are both wrong. It’s not a balancing act at all. We cannot figure out any legitimate or compelling governmental interests that would bar a speaker from making a statement on someone involved in a agenda item. We cannot see this as a “balancing act” as the law says there has to be “bright lines” and a “narrow focus” of the regulations, not some teeter board where kids sit on either side going up and down in order to be “balanced.”
Here’s the summary:
Governments can set up meetings where they people’s input is sought. Those meetings are called “limited public forums.” In those forums, comments and speech can be restricted to topics, but not to viewpoint. Allowing one side of an argument to speak and not allow another is viewpoint discrimination and is unConstitutional.
Byron himself has admitted that he would not allow comments on one side of an issue while allowing other comments.
His position is wrong, unConstitutional, and foreseeable given the way the Commission failed to handle this issue.
As for us, we will keep fighting for a government that follows the laws and Constitution as well as protects the rights of the people.
While we do that, we will be eat fried chicken.
With our hands.