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Palm Bay: City Can’t Remember Their Own Statements.

On November 7, 2019, Thomas Gaume made a presentation on the timeline and potential consequences of the City’s handling of the ballot initiative petitions. In making his presentation, Gaume used the City’s projector so his material could be seen by not only the members of the Council, but the audience and staff in attendance.

To make the presentation, Gaume had to submit the presentation for approval from the City under rule 7.8.6 which when originally passed in February 15, 2017 read:

7.8.6 VISUAL PRESENTATIONS BY THE PUBLIC

A. Members of the public wishing to use electronic media when addressing city council must provide the electronic file to staff for screening no later than noon two (2) business days prior to the meeting. Screening ensures that the material is in a format capable of broadcast or presentation over the audiovisual system, and assures that the material is legally appropriate for broadcast over the audiovisual system and cable. No visual materials may be displayed through the audiovisual system that City staff has not screened. No visual presentations containing offensive material will be displayed or utilized in any fashion.

1. Visual materials include any visual or textual items that are to be displayed through the audiovisual system irrespective of their specific format or media. This includes, without limitation, photographs, audio and video presentations, charts, computer presentations, computer screen images, posters and flyers, whether in physical or electronic format.

2. Visual presentations during public comments are limited to times outlined above in this Section.

B. Visual materials do not include items held or worn by a speaker at the podium or worn by a member of the audience, even though such items may be televised through the cameras that view the audience and the dais.

There are all sorts of problems with this rule that will come into play in a moment. However, the rule was changed and amended slightly on December 20, 2018 to read:

7.8.6 VISUAL PRESENTATIONS BY THE PUBLIC

A. Members of the public wishing to use electronic media when addressing city council must provide the electronic file to staff for screening no later than 2:00 P.M. on the day of the meeting. Screening ensures that the material is in a format capable of broadcast or presentation over the audiovisual system, and assures that the material is legally appropriate for broadcast over the audiovisual system and cable. No visual materials may be displayed through the audiovisual system that City staff has not screened. No visual presentations containing offensive material will be displayed or utilized in any fashion. (Note for the Public: Please coordinate presentation materials through the City Clerk/Legislative Department. It is recommended that if the presenter intends for audio presentations to be broadcast during the meeting, files must be submitted to the City Clerk at least twenty-four (24) hours prior to the meeting.)

The effect of the change was to lower the time the City had to approve video presentations and to add a separate time frame for audio presentations.

When the rule was first added, it was clear to many that the idea of the rule was to insure that the City could see presentations and prepare for them. At the time, several Council members and the City Attorney were seeing presentations that addressed factual issues which made them look bad. When the rule was revised as far as time was concerned, Bailey admitted that we “all knew why the rule was originally passed.”

In discussing the rule the night it was proposed, then City Attorney Lannon and Councilman Bailey engaged in this conversation:

Lannon justified the rule by saying the City had the right to not show things that were “offensive.” He gave two examples. The first was a reference to a film on 9/11 that was shown to the Council years ago that had graphic images within it. The second case was that he said the City could prevent the “f-word” from being used.

Bailey asked how many times such a situation where something “offensive” was in a presentation had occurred. Lannon could only repeat the 9/11 video and a desire to protect someone from hearing the “f-word.” That answer leaves us less than convinced of the need for this rule, even it if were Constitutional.

First, a historical image cannot be “offensive” and cannot be censored. Even if a citizen finds the image objectionable, the Supreme Court ruled that the solution is by “averting their eyes.”

Following the initial passage, Lannon issued a memo on the rule – a memo ignored and contradicted the State and Federal Constitution, laws and precedents.

Because the City was interested only in seeing what people were going to say, they kept the rule on the books.

The City was going to continue to illegally demand that they approve the speech of private citizens.

When Gaume finished speaking on Thursday, the City was ready with a response. It was a response that didn’t make any sense, but that is a post for another day. Still, what had happened was that the City had used the rule to prepare a response, rather than the stated purpose of the rule to scan for “objectionable content.”

Gaume addressed that in the second part of the public comments.

After he was done, Councilman Bailey asked had this exchange with the City Attorney Patricia Smith:

BAILEY: Can I just ask a real quick question because I am curious…the accusation tonight is that prior restraint has been “had” with this. I’m just curious, that word “restraint” the finding legally “prior restraint,” does that require actual censorship or suppression of material?

SMITH: Yes. We don’t review…”oh, we don’t like this and so we won’t accept it. Essentially, you can’t have government censorship. There is no censorship. As much as you submit a public document, can it be treated as a public record? Yes. But we’re not prohibiting him or anyone else from making a presentation because we don’t agree with the ideas in it. That’s where you get that from.

BAILEY: I just want to be clear because you know, the Mayor and Mr. Gaume knows that I pushed hard that you didn’t have to submit it two days ago was that I did try to bring it up as close as possible and I had no problem with bringing it up for an even closer date for Council. So I have no problem with that idea but at the same time, I do want to make sure that the Council and the staff is clear and that the public and anyone listening knows that we aren’t violating anyone’s rights – nothing was suppressed. That’s what I see tonight nothing was suppressed, nothing was censored, I don’t believe there is anything that was withheld from the presentation.

Smith is wrong.

Flat out wrong.

Smith says that in order for prior restraint to have occurred, there must be actual censorship.

The law doesn’t say that:

A prior restraint is an official restriction of speech prior to publication. Prior restraint refers to an unconstitutional attempt to prevent publication or broadcast of any statement, which is restraint on free speech and free press prohibited by the First Amendment to the Constitution. The ban on prior restraint allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered and some forms of pornography. The theory, articulated by the U.S. Supreme Court in Near v. Minnesota (1931) is that free speech and free press protections have priority, and lawsuits for libel and slander and prosecutions for criminal advocacy will curb the effect of defamation and untruths. Blackstone’s theory on this subject held that liberty of the press depended on having no prior restraints on publications, and not in freedom from punishment when cri minal matter is published. (emphasis ours)

The City admits that is it requiring the submission of the presentations to approve them for objectionable material. It is the attempt that matters – not whether there is actual censorship.

Smith says that the City doesn’t review because they disagree with ideas. If that is the case, then what is the definition of “objectionable?” Is the City really trying to foist the idea that something that is “objectionable” to them is something they agree with?

Furthermore, as proof that “prior restraint” doesn’t require the actual censorship of something is what is called the “chilling effect on speech.”

We’ll let Fire describe it:

Chilling effect refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action.

Justice Felix Frankfurter referred to the chilling effect in his concurring opinion in Wieman v. Updegraff (1952), a case involving a loyalty oath imposed on teachers. In that opinion, Justice Frankfurter declared:

[The loyalty oath] has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

Vague laws produce chilling effects because individuals do not know exactly when their expressive conduct or speech crosses the line and violates such rules. The Supreme Court explained this when examining the constitutionality of two provisions of the Communications Decency Act (CDA) that criminalized the online transmission of “patently offensive” and “indecent” communications. However, the law failed to define either term.

[….]

The late Yale Law Professor Alexander Bickel recognized that while “the criminal statute chills, the prior restraint freezes.” In this spirit, some lower court jurists have spoken not just of chilling effects but also of “freezing effects” when speaking of laws that negatively impact First Amendment freedoms.

(It should be noted that the City has never defined what is “objectionable” or “offensive material.” Because of that, the rule itself is overbroad and vague. No one in the City can truly know what criteria is being used to evaluate the presentations.)

It is clear that it is not actual suppression of ideas or comments that creates prior restraint, but a law or rule that inhibits speech because of a government action such as reviewing the content of what will be said prior to it being said.

We know that people won’t agree with the City Council all the time on all issues.

What we do hope is that the City Council and the City Staff will follow the laws of the land.

As for right now, that’s a pipe dream as they are not.



3 Responses to “Palm Bay: City Can’t Remember Their Own Statements.”

  1. Thomas L Gaume says:

    Yes, there have been times that I have refrained from submitting a presentation, opting instead to either just verbally make my statements, or use other means.

    Such as the night I used my iPad to display a picture of a City Council member engaging in ex-parte communications with a group that was engaging in litigation against the City.

    These draconian rules must be abolished.

  2. Mike Reitano says:

    the only reason I could see for asking to have the material first is to make sure it doesn’t carry any viruses that could infect the cities computer system. unless the presentation could be stand alone and in no way attached to the cities system then it would not be needed.

    • AAfterwit says:

      Mike Reitano,

      Thanks for the comment.

      We agree with your point.

      However, as has been pointed out, “sandboxing” the computer that controls the projector is much safer than allowing the files to be sent through the City’s email system where the file is on the email servers.

      The security of the system was brought up later after the rule was passed. It was never a primary or secondary reason for the passage of the rule when it was passed.

      To us, it just became an excuse to get to the content. When we and others made presentations, prior to the presentation we handed the file to the City (Ms. Morrell at the time) and she scanned it one the projector controlling computer then. This was just prior to the meeting.

      She told us that there had never been a virus in a file, but that doesn’t mean that there could not be one in the future.

      The bottom line is that the security reasons are valid to a point, but they do not require the City to scan the contents of the presentation which is really what the City is looking to do.

      A. Afterwit.

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