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Dear Commissioners.

As we said yesterday, we sent an email detailing the issues we had with Commissioner Curt Smith’s “Censure Ordinance” that was to be voted upon for advertising funding on December 5, but was pulled from  the agenda.

This is a copy of that email.


Dear Commissioner,

As of 10:53 AM on December 4, 2017, the item we discuss below has been pulled from the December 5 agenda.  We do not know why it has been pulled only that it has been pulled. 

However, we believe that the ordinance never should have been proposed or written in the form you were presented during the Novermber 21, 2017 meeting. 

Therefore, because of our concerns with this proposed ordinance, we are sending the email below which we had prepared to send to you today on the ordinance.  We wanted to explain and give citations as to why the ordinance is flawed and unConstitutional as well as offering other means for dealing with certain conduct that is within Robert’s Rules of Order while not infringing on the protected speech of the public.

Thank you in advance for reading this.

Respectfully,

A. Afterwit.


Dear Commissioner,

On December 5, 2017, you will discussing and voting upon Agenda Item VI(F)(2) which is under “New Business,” “Miscellaneous.”

The item is described as “Request for Advertising of a Public Hearing, Re: Censure Ordinance Governing Board of County Commissioners Meetings (District 4)”

This funding request should be voted down as the proposed ordinance is both superfluous and unConstitutional.

The proposed ordinance has basically two sections.  The first deals with the conduct of members of the County Commission and the second part deals with the speech of citizens.

CONDUCT OF COMMISSIONERS.

It should be noted that the Agenda item before the funding request is to discuss:

Requested Action:

The Board discuss amending its Board Operating Procedures to require a 4/5th majority to suspend its adherence to procedures set forth in Robert’s Rules of Order.

Summary Explanation and Background:

On Nov. 21, 2017, the Board reaffirmed its adoption of Robert’s Rules of Order as the primary guideline for conducting its meetings as part of its Board Operating Procedures. Additionally, Commissioner Curt Smith has proposed an ordinance which reiterates the need to maintain “strict order” during Board meetings.  (emphasis ours)

As the Commission is already operating under Robert’s Rule of Order, we wonder why the Commission doesn’t abide by the decorum rules under Robert’s? Doing so would mean that there is no need to create a new legal mechanism for decorum.

Shouldn’t the very first step in “decorum” be to apply the rules under which the Commissioner agrees to operate rather than create ordinances at the expense of the taxpayers? Or is the Commission going to say “we agree to Robert’s Rules of Order, but we won’t abide by them and won’t hold Commissioner accountable to those rules.”

Is the Commission really willing to say “the Chairperson will not enforce the rules and therefore we need to create new ordinances?”

Article VII, Chapter 43 of Robert’s Rules of Order addresses decorum in debate:

43. Decorum in Debate. In debate a member must confine himself to the question before the assembly, and avoid personalities. He cannot reflect upon any act of the assembly, unless he intends to conclude his remarks with a motion to rescind such action, or else while debating such a motion. In referring to another member, he should, as much as possible, avoid using his name, rather referring to him as “the member who spoke last,” or in some other way describing him. The officers of the assembly should always be referred to by their official titles. It is not allowable to arraign the motives of a member, but the nature or consequences of a measure may be condemned in strong terms. It is not the man, but the measure, that is the subject of debate.

(source: http://www.rulesonline.com/rror-07.htm )

Robert’s further allows the Chairperson to gavel a speaker who is outside the topic of discussion and certainly snide remarks, insults, etc. would be outside the topic at hand.

The Commission should eschew trying to implement new laws when it is unwilling to act within the rules that are in place now.

We cannot remember the last time we saw a Chairperson take control of a meeting and not allow under Robert’s the very comments you wish to outlaw in an ordinance.

You don’t need more laws. You need to enforce the rules under which you now operate.

CITIZENS’ SPEECH.

We have no idea why this section was written.  We have no idea why the Commissioner who is bringing this ordinance forth and the County Attorney abandoned their oaths to the Florida and US Constitution.   We do not say that lightly.  The section dealing with citizens’ speech and comments is an abberattion and attack on the rights of citizens.

Section 2-30 (b)(3) reads:

Each person that addresses the Board, staff, or the general public must avoid making impertinent, profane, or slanderous remarks that cause a disruption, disturbance, or otherwise impede in the orderly conduct of any County Commission meeting and the fair progress of County business.

As there are three proscribed remarks listed, it may be helpful to address them one at a time:

1) Remarks that are “impertinent.”

According to Merriam-Webster “impertinent” is defined as:

a:     not restrained within due or proper bounds especially of propriety or good taste

b: given to or characterized by insolent rudeness

(source: https://www.merriam-webster.com/dictionary/impertinent )

It is not up to the Commission to determine what is “rude,” but even if it could, governments have no right to restrict speech on that basis.

In the case of Bridges v. California,  ( https://supreme.justia.com/cases/federal/us/314/252/case.html ) the Supreme Court stated:

“For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”

Furthermore, in New York Times v. Sullivan, ( https://supreme.justia.com/cases/federal/us/376/254/case.html )the Court ruled:

“Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (emphasis ours)

In other words, citizens have the Constitutionally protected right to be “impertinent.”  Even in a limited public forum such as a Commission meeting, citizens have the right to be “impertinant.”

2) Remarks that are “profane.”

In  Cohen v. California,  (https://www.law.cornell.edu/supremecourt/text/403/15 ) Justice Harlan wrote in the majority opinion that it is nevertheless often true that one man’s vulgarity is another’s lyric.”

It is improper and unConstitutional for the government or government officials to restrict speech based upon what they believe to be “profane.”

As an aside, there is a difference between the Constitutionally protected “profane” and the not Constitutionally protected “obscene.” Courts around the country have all held that the “f” word (or “f – bomb”) is protected speech. The word has become ubiquitous in today’s society. (See Marc Rendazza’s rather famous 2007 legal brief on the “f” word as to how common the term is today and why it is protected speech.(https://randazza.files.wordpress.com/2007/06/cybernet-trademark-matter-uspto.pdf ) )

3) Remarks that are “slanderous.”

There are two issues here and we believe both need to be addressed.

First, “slander: is defined as

oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. ( http://dictionary.law.com/Default.aspx?selected=1969 )

Whether a statement is “slanderous” is a legal conclusion decided in a court of law. It is not a conclusion that the Chairperson of the Commission can make.

That is not to say that slander is protected, only that whether a statement is slanderous is decided by a judge and or a jury.   If a Commissioner feels slandered, they have the right to pursue legal recourse through the courts.

However, even if the Commission could determine whether a statement is slanderous, slander of a public official requires proving that the statement was made with malice.

Once again from New York Times v. Sullivan (previously cited)

…. prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The Chairperson of the Commission simply cannot make the determination of malice without a trial.

The legal conclusion of whether a statement is slanderous can never be met by the Commission.  As such, the speaker can never be penalized under the ordinance.

However, we suspect that in this ordinance, “slanderous” does not mean the legal definition of slander, but rather a “negative statement made against or toward someone.”

For example, we believe this ordinance may be used to stop or punish a statement such as “Commissioner Jones is a complete idiot.”   (This is a hypothetical statement and not reflecting on any Commissioner now or in the past.)

The Constitutional problem is that the Commission allows positive statements about people and Commissioners. (“Commissioner Jones is a great guy of great intelligence.”)

To allow the positive statement and not allow the negative statement is classic viewpoint discrimination and not allowed under the Constitution. Governments have to be “content neutral” when it comes to speech. The Commission would have to ban all “nice” statements and even resolutions praising people if you were to define negative statements as being “slanderous.”

No matter how you try to define it, the Commission cannot restrict speech on what they consider to be “slanderous.”

As the three types of speech within Section 2-30 (b)(3) are in fact Constitutionally protected, the rest of the section (“….that cause a disruption, disturbance, or otherwise impede in the orderly conduct of any County Commission meeting and the fair progress of County business”) is meaningless.

The government has the duty and responsibility to protect the rights of the people.  As we have shown, the speech this ordinance is Constitutionally protected under both the Florida and US Constitution.

However, that leads to the question, “what happens to people that do cause a disruption or disturbance?”

The answer is simple: the Chairperson demands order from the audience and if that order is not obtained, you have the people removed. That action is allowed under Robert’s Rules of Order. You remove the people in the audience for the disturbance. The speaker is not generally held accountable for the reaction of the audience.  You aren’t removing people for speech or what was said, you are removing them for the disturbance.  The reaction to Constitutionally protected speech is always on the listener, and never the speaker.  You cannot remove or punish people for legally protected speech.  Period.

This is not to say that there are no restrictions to speech in the Commission Chambers. Speech that is deemed to be a “credible threat” is not allowed. Speech that incites people to lawlessness is not allowed.   Yet this ordinance doesn’t address those types of speech nor should it as there are already laws and case law preventing that type of speech.

We also want to make it clear that we would never try to be impertinent, profane or make what someone  may consider legal slander.   It has been our experience that people and especially elected officials turn off their ears when those types of statements are made. If one is trying to convince an elected body of something, it is better that they are listening and have not “checked out.”  Yet the choice to be or not be “impertinent, profane or “slanderous” is ours, and not the Commission’s.  We have the right to be and say all those things.  It is our choice not to do so.

We initially stated that this proposed ordinance is both superfluous and unConstitutional. Even if you want to believe that the section dealing with conduct of Commissioners is needed, the section dealing with the speech of citizens is not Constitutional. It will never survive a challenge in Court. Such a challenge would cost the County money and we would never advocate spending money on something on a lost cause.

We hope you agree with that.

Therefore, the request for funding to advertise this ordinance should be denied. It is a waste of funds to advertise an ordinance that is so blatantly unConstitutional and would never stand up in court.

It would be better if the County used the advertising money for this and instead used the funds to fill a pot hole.

On December 5, 2017, when this item comes up for discussion, debate and a vote, you will have a chance to uphold your oath of office, or say “the Constitution of the State of Florida and the United States don’t matter.”

We hope you do the right thing and vote against this funding and the ordinance itself.

Respectfully,

A. Afterwit.

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