UPDATE: The Pierce County Council voted unanimously on August 9 to repeal a rule that barred speakers at public meetings from attacking or questioning the motives of council members.
July 6, 2005
Pierce County Council Chairman
930 Tacoma Avenue S, Rm 1046
Tacoma, WA 98402
Re: Restrictions on Public Comment Periods
Dear Chairman Bunney:
The ACLU of Washington writes to express its objection to a new rule adopted by the Pierce County Council governing public comment periods during council meetings. The new rule says: "Speakers may not attack or make any allusion to the motives of any council member." The ability of citizens to state their views about the performance of their elected officials is one of the cornerstones of a free and accountable government. The new rule is a plainly unconstitutional violation of that principle.
Local governments have some leeway to determine the ground rules for public comment periods, so long as those rules are reasonable and viewpoint-neutral. Kindt v. Santa Monica Rent Control Board, 67 F.3d 266 (9th Cir. 1995); White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990). The new Pierce County rule is as far from viewpoint-neutral as one can imagine. It allows people to praise council members but not criticize them. A case involving a virtually identical rule concluded that it violated the First Amendment right of free speech. The school board in Bach v. School Board of the City of Virginia Beach, 139 F.Supp.2d 738 (D. Va. 2001), adopted a rule against "attacks or accusations regarding the honesty, character, integrity or other like personal attributes of any identified individual or group." The court had no difficulty in finding that this rule was an unconstitutional attempt to censor viewpoints the board disliked.
The purpose of a comment period is to allow citizens to interact with their elected representatives. It is an unreasonable restriction of this purpose to declare that certain forms of speech will not be allowed. Mesa v. White, 197 F.3d 1041 (10th Cir. 1999). The constitution protects the ability of all persons to speak their mind about public officials, even if what they have to say is unkind. Our constitution reflects "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." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
The Pierce County Council is entitled to adopt truly neutral rules about its public comment period, such as a time limit or a noise restriction. If a speaker abuses the public comment period by engaging in disorderly conduct, the person can be prosecuted. But the constitution does not allow the Council to ban verbal attacks on Council members. It is the duty of elected representatives to listen to their constituents, not silence them.
Please let me know by July 22 whether this rule will be repealed.
AARON H. CAPLAN
Cc: Councilmember Calvin Goings
Councilmember Roger Bush
Councilmember Timothy Farrell
Councilmember Barbara Gelman
Councilmember Dick Muri
Councilmember Terry Lee
Prosecuting Attorney Gerry Horne