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Commentary: Comment policy does infringe on free speech

I have read “Commenting policy does not infringe on 1st Amendment” by Dennis Popp in the Dec. 1 Daily Pilot and would like to offer a different conclusion and correct and clarify some points made in Mr. Popp’s letter on Costa Mesa Mayor Jim Righeimer’s new public comment process.

Contrary to Popp’s letter, Mayor Righeimer’s new process, which forces all but 10 non-agenda public commenters to wait until near the end of the meeting to be heard, does seem to infringe on the 1st Amendment right to speak in public comment sessions, as created by the Brown Act [the state’s open-meetings law].

Popp incorrectly claims that the mayor of a city runs a business meeting. No, a mayor runs a municipal government meeting.

Municipal governments must meet regularly in public, and citizens may attend these meetings to express opinions and/or concerns about city decisions and issues. Remember, it is our government, and it is supposed to be government of the people, by the people, for the people.

Next, Popp claims that the 1st Amendment guarantees a right to be free from government restrictions on speech, not the right to speak when and where one prefers. To clarify, according to the First Amendment Coalition, “courts have held that the public comment sessions created by laws like the Brown Act are ‘limited public forums’” (White v. City of Norwalk, 900 F.2d 1421 (1990).”

As a result, the public has a 1st Amendment right to speak in public comment sessions. In the case of the Brown Act, this means that members of the public can be subject only to time, place and manner restrictions on their speech that are reasonable and viewpoint-neutral (Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (1997); Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (1996)).

Viewpoint-neutral means the restrictions can’t favor any particular attitude or position related to a person or subject.

So does the mayor’s new public comment process pass the reasonable and viewpoint-neutral test?

First, is it “reasonable” to force public speakers to come at the beginning of the meeting (6 p.m.) to submit their non-agenda item speaker card and then for many of them, who may have personal or physical limitations, to wait until midnight or longer to actually make their three-minute comment? I think not.

Also, following the first 10 speakers, each council member has an opportunity to make comments and may address an issue raised by a member of the public. However, those who speak at the end of the meeting are unreasonably disadvantaged because there are no council member comments that follow.

Second, regarding viewpoint-neutrality, this can only be achieved by a truly random and blind selection of the speakers via the required speaker cards. However, the mayor does not provide a reliable mechanism for this, and there are concerns.

For example, why is the card selection done only by the mayor at the dais out of easy public view? How are the cards randomized? Are all the cards shuffled face down? Are they exactly the same size, color, and free of identifying marks on the edges or backs?

At the Dec. 3 council meeting it was explained that the new process would allow public hearings to start on time. This is not adequate justification for inhibiting public comments when the old process could be easily kept by just moving the hearing start time back 15 minutes.

We should return to the process of letting everyone speak near the beginning of the meeting because the new process is of questionable legality and likely to stifle the public’s involvement in their government.

CHARLES MOONEY is a resident of Costa Mesa.