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Palm Bay: The Lannon Memo On Speech.

At the last Palm Bay City Council meeting, City Attorney Lannon said he would prepare a memo justifying the legality of the new City Council policy on submitting visual presentations two days prior to any Council meeting in order to be shown to the Council and the public.

To refresh the memory of some, the rule reads:

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.

The Lannon Memo has been prepared and sent out to the Council members. You can read a copy of the memo at the bottom of this post or by clicking here.

Before then, we want to address some of the things that are said in the memo itself.

First, Lannon goes over the history of the Florida Statute and cites the case Herrin v. City of Deltona from which Lannon quotes the decision and emphasizes a certain part of the text:

“The phrase ‘open to the public’ most reasonably means that meetings must be properly noticed and reasonably accessible to the public, not that the public has the right to be heard at such meetings.Herrin v. City of Deltona, 121 So. 3d 1094. 1097 (Fla. 5th DCA 2013) (emphasis in original memo).

Timing is everything in life. The decision in the case to which Lannon refers was decided on August 16, 2013. The date is important because the decision notes that the law was about to change effective October 1, 2013. The Court had to decide the case based on the current law at the time and could not look forward. The Court did write, however that the very section Lannon quoted would no longer apply:

We view the recent passage of section 286.0114, Florida Statutes (2013), as consistent with and support for our interpretation of the Sunshine Law. Section 286.0114, which takes effect October 1, 2013, specifically provides, with limited exceptions, that the public be allowed a reasonable opportunity to be heard on a proposition before a board or commission. (emphasis ours)

We believe that Lannon wanted to leave the impression that there was no right of the public to be heard today. Even though the law was about to change making the ruling in Herron moot, Lannon quoted the past instead of the present. We know that once people read something, it will stick with them and that seems to be what Lannon is doing. He wants people to think that there is no right o be heard in a meeting (with a few exceptions.)

Lannon then quotes the new law and highlights certain passages. In order, Lannon emphasizes:

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).
[….]
(4) Rules or policies of a board or commission which govern the opportunity to be heard are limited to those that:
[….]
(c) Prescribe procedures or forms for an individual to use in order to inform the board or commission of a desire to be heard; to indicate his or her support, opposition. or neutrality on a proposition;
[….]
(5) If a board or commission adopts rules or policies in compliance with this section and follows such rules or policies when providing an opportunity for members of the public to be heard, the board or commission is deemed to be acting in compliance with this section.

We suspect that Lannon is trying hang his legal hat on the idea that the Council can enact rules and policies for an orderly meeting and therefore can screen for content. The City does have rules in place that do insure an orderly meeting. Citizens are limited to 3 or 5 minutes (depending on the agenda item.) Citizens must speak one at a time and at the podium. Citizens are asked to fill out comment cards prior to speaking. All of which are designed to make sure the meeting doesn’t turn into anarchy and a rabble.

Yet please notice what is missing from Lannon’s citation: the ability of the City to approve what a person says or displays. That’s what is not within the law. In fact, the law limits the policies to that which inform the board or commission of a desire to be heard; to indicate his or her support, opposition. or neutrality on a proposition. You don’t have to tell the Council or board or staff where you stand on an issue prior to speaking. All that is required and what the City is limited to is notification that you want to be heard on an issue.

Right off the bat, by using Lannon’s own citations, the new rule is contrary to the Florida Statues.

Lannon then moves to a paragraph called “Current State of the Law.”

He writes:

Hence, for forty (40) years, the City of Palm Bay has afforded its citizens the constitutional right to speak freely and be heard about matters effecting our City.

The City hasn’t “afforded” anything. The right to speak freely is not granted by the government or even the City of Palm Bay. Once again, Lannon is being somewhat deceptive and makes it seem as if the City is being generous and benevolent in recognizing the right of free speech. It almost seems that Lannon believes that rights – even enumerated rights – are granted by the government and not inherent to the people.

Lannon goes onto cite the case of Pleasant Grove City. Utah v. Summum, and emphasizes:

….government entities are strictly limited in their ability to regulate private speech in such “traditional public fora,” Cornelius v. NAACP Legal Defense 6( Ed Fund, Inc.• 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Reasonable time, place, and manner restrictions are allowed, see Perry Ed Assn., supra. at 45, 103 S.Ct. 948, but any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest, see Cornelius, supra. at 800. 105 S.Ct. 3439, and restrictions based on viewpoint are prohibited, see Carey v. Brown, 447 U.S. 455, 463, 100 S.Ct. 2286. 65 L.Ed.2d 263 (1980).

We agree that the City may impose time, place and manner restrictions on speech. That’s not the issue. In fact, the restrictions for speaking before the Council include time (at what point in the agenda one may speak,) place (at the podium) and manner (no bulhorns, etc.) are in place. Yet the problem is not that the City may impose time, place and manner restrictions on speech, but that in order to implement the new rule, it must pass the first test of being “narrowly tailored.” In other words, the City can’t make rules that are so broad that every form of speech is regulated.

As it applies to the City Council rule, the new rule is not narrowly tailored. The rule states:

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. (emphasis ours)

As there is no definition of “offensive,” the new rule is already overly broad and not narrowly tailored. What is “offensive” to one person may be acceptable to another.

In addition, the “manner” part fails with this rule because what the City is saying is that if you want to show something that they do not believe is “offensive,” that’s okay. You are free to use the audio / visual equipment. If we find it ‘offensive,’ then you cannot use the audio / visual equipment.”

In Rosenberger v. Rector and Visitors of the University of Virginia , the Court was faced with whether the University of Virgina could withhold funding and support from a Christian club due to what the club believed and said.

Based on the principles we have discussed, we hold that the regulation invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech guaranteed by the First Amendment.

As the City wants to withhold the use of the audio / visual equipment unless the content of the presentation meets some undefined non-offensive criteria, it is clear that the City’s restriction on the uses of equipment is unConstitutional. (See also Good News Club v. Milford Central School where the Supreme Court ruled that not allowing a club to use a school facility that every other club had access to was unConstitutional and a violation of the First Amendment.)

In addition, we would argue that the rule imposes financial burdens on speakers through additional printing costs and display boards who do not wish to have their presentations reviewed and “approved” by the City. As Marc Randazza notes:

It is flawed to argue that governmental-imposed financial impediments to expression are not censorious as long as the expression is still allowed to proceed.* Under the unconstitutional conditions doctrine, the government may not condition the availability of a government benefit on an individual’s agreement to surrender a constitutional right.**

* In re Tam, 2015 U.S. App. LEXIS 22593, at *39 (discussing the unconstitutional conditions doctrine).
** See Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 59 (2006); Doyle v. Continental Ins. Co., 94 U.S. 535, 543 (1876) (Bradley, J., dissenting); Home Ins. Co. of New York v. Morse, 87 U.S. 445, 451 (1871).

The second part of “serv(ing) a compelling government interest” must also be met.

Lannon argues that:

The impetus for this change was my concern (which I subsequently discussed with City Clerk Terese Jones and City Manager Gregg Lynk who shared the same concern) about any public presentation containing obscene, vulgar and similarly offensive content and profane/obscene expressions/gestures being displayed at a Council Meeting.

While Lannon, Lynk and Jones may have a “concern,” that “concern” is not a compelling government interest. In fact, the Supreme Court has repeated ruled that speech that is offensive and even profane is protected. In Texas v. Johnson, the Court opined:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e.g., Hustler Magazine v. Falwell, 485 U.S. at 55-56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Carey v. Brown, 447 U.S. 455, 462-463 (1980); FCC v. Pacifica Foundation, 438 U.S. at 745-746; Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S. 1, 16-17 (1976); Grayned v. Rockford, 408 U.S. 104, 115 (1972); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Bachellar v. Maryland, 397 U.S. 564, 567 (1970); O’Brien, 391 U.S. at 382; Brown v. Louisiana, 383 U.S. at 142-143; Stromberg v. California, 283 U.S. at 368-369.

In the recently decided case of Matal v. Tam, the Court decided:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

[….]

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Somehow Lannon is unaware of the case law that says the government cannot restrict that which it finds “offensive.” In direct contrast to the First Amendment and case law, Lannon writes:

These concerns are addressed appropriately through section 7.8.6, PBCPP because: (1) preventing such offensive content from being displayed serves a compelling governmental interest and (2) there are no restrictions on the content based upon viewpoint or political perspective, only restrictions upon offensive content. Furthermore, two (2) business days is a presumptively reasonable timeframe.

(The memo also has this little footnote:

A comment was made at the last Regular Council Meeting by a member of the public expressing concern that elected officials were screening the content of the audio or visual presentation. As section 7.8.6 of PBCPP states, City Staff reviews the presentation, not Council.

Lannon, the memo, and the rule fail to define who is “City Staff.” Is it the City Manager? The City Clerk? The mechanic who fixes the City vehicles? A receptionist? This becomes important as without knowing who is reviewing and screening the items, there can be no consistency and more importantly, no due process in appealing any decision the unnamed “City Staffer” may make.)

The memo itself is a legal disaster. It fails to address the most fundamental issue of the government’s lack of the ability to censor that which it finds “offensive.” Even the idea that there is a “compelling interest” that the government censor “offensive speech” as to keep a meeting orderly falls flat on its face as when asked to recall any incident where offensive speech had led to a disruption, Lannon could not recall a single incident. It is difficult for anyone to accept the idea that there is a “compelling government interest” in controlling an event that has never happened before.

Lannon seems to think (without any legal support) that because a City may enact rules that allow the meeting to remain orderly, those rules entail censoring what someone feels is “offensive.” He feels that allowing one person to use City resources while denying the same use to another person is legal. He seems to think that the rights of people come from the government.

He seems to think a lot of things that simply are not true.

Sadly, we have been down this path before. The City Council will look at Lannon’s memo and say “we have to accept this as being accurate as we are paying him to be our legal counsel.” Even though we, and others, are driving double wide tractor trailers through Lannon’s arguments and false logic, the City Council will say “nothing to see here, move along.”

People will rail and scream and fight against this, but until the City of Palm Bay votes in people that are willing to insure that they and employees actually follow the law, the Florida Constitution and the US Constitution, nothing will change.

That’s the real pity of this.


One final note…..

One of the things Lannon said in his comments at the Council meeting was that he didn’t want some young lady (who was a senior in high school) to hear the “f-word.” Lannon is out of touch with the real world in that regard, as we are positive the girl has heard the term thousands of times at school. Still, back in 2006, Attorney Marc Randazza wrote what has come to be called the “F*** Brief.” The brief is famous for it makes the claim that the f-word is not offensive or vulgar, but part of every day society. You can read the brief here, but be prepared for the liberal use of the word.

The reason we point the brief out is because it is amazingly written and sourced, it made us think, and most of all, it highlights the very issue at hand – what is offensive to one person is not offensive to others. Or, as the brief puts it, “One man’s vulgarity is another man’s lyric.”



4 Responses to “Palm Bay: The Lannon Memo On Speech.”

  1. Alice Addertongue says:

    Is it just me or did the City Attorney’s memo actually make a case for free speech and against the Council’s policy. Seems as though most of the instances he stated were in support of the First Amendment and open government.

    The argument that anything submitted two days in advance would only be “screened” (PC word for censored) by staff is laughable. Once anything is submitted to the City it is public record, and available for inspection by anyone (including elected officials). To say “yes a presentation exist, but you can’t have it” fly in the face of what the SunShine laws are about.

    Example of request from Councilman Luigi (pizza, pizza) made on Tuesday at 12:01 PM to the City Clerk. Please forward me anything submitted for display for this Thursday nights council meeting.

    To that request there is only one (1) proper response and that to forward anything received. The law makes no provision for delaying the fulfillment of such a request.

    • AAfterwit says:

      Alice Addertongue,

      We agree that the memo actually makes the case against the Council rule. That is why we called the memo a “legal disaster.”

      Secondly, we realize that Mr. Gaume is taking the position of “prior restraint” and we agree with that. On the other hand, even absent of prior restraint, the memo and the rule falls because it is censorship above and beyond what is allowed which is time, place and manner restrictions.

      Also, while the law makes not provision for delaying the fulfilling of a public records request, neither does it require that the records custodian drop everything they are doing and reply to the request. I believe the law says a request shall be filled within a “reasonable amount of time,” and the handbook for City Clerks in Florida says that for anything over 10 days, the requesting party should be notified and given the reason for the delay.

      However, we aren’t naive and don’t even think that the City would rush to fulfill a request by Council members. We believe that the City would forward or show the presentation to the Council members or relevant departments without a request being filed. We believe that is the true impetus for this “rule.” Remember, when our graphics guy made a presentation on emails, Council Holton (Pizza! Pizza! ™) remarked how he was “tired of seeing his picture” up on the screen. What’s the best way to make sure your picture isn’t up on the screen? Or that you are prepared for what a speaker is going to say?

      You get the presentation first.

      Thanks for the comment.

      A. Afterwit.

  2. Third Dimension says:

    I am in agreement with Alice A. above. Lannon in his “baby and bathwater” moment, seems to have given David Morris cause for action against the City.
    Reference III. A.
    “…the government does not have a free hand to regulate private speech on government property”
    It was Lannon who ordered one Code Enforcement officer into an unreasonable, unconstitutional violation against Mr. Morris.
    Also to Mr. Gaume’s complaint of “prior restraint” being censorship, this statement from Lannon holds true.
    The one statement most relevant, is Lannon educating the council on it is up to them to set their own policy.
    Time for the people to tell their council, there is no need or prerequisite to stifle free speech, in lieu of assisting at-risk candidates on the council to a free peek at public comment.
    Someone needs to reach out to David Morris.
    The people should back Thomas Gaume in his candidacy and prior restraint argument.

    • AAfterwit says:

      Third Dimension,

      “…the government does not have a free hand to regulate private speech on government property”

      The government is free to place reasonable time, place and manner restrictions on speech on government property.

      That means if the City wants no signs of any type on City property, they can do that.

      The problem is that City Manager Lynk has already said that restriction on signs and the signs they are allowed are based on the content of the signs saying:

      Extraordinary circumstances exempt, historically, City sponsored events have been the only signs that have been allowed to post on City assets.

      The idea that the City would approve signs with one content but not another is a classic content restriction.

      In short, time, place and manner restrictions are fine. Content restrictions are not.

      Thanks for the comment.

      A. Afterwit.

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