Guest Column: Policy and Procedures During Council Meetings

Editor's Note: Mark Trottier of North Adams read this statement aloud as an agenda item at the North Adams City Council meeting on Tuesday, July 12, 2011. Mr. Trottier expressed concern over what he felt was the inappropriate silencing of a citizen's right to express himself at a council meeting last month. Because of the length of his statement and the number of inquiries we received about it, we asked him permission to post it in full as a guest column. We have added links to the court cases he cited.

I am not a expert on Constitution issues, nor an attorney, or even a speaker, just a average citizen who believes that "two wrongs don't make a right."

I am not here to defend anyone, nor chastise any councilor regarding there remarks or actions, I think you all can do this very well on your own. There is nothing that I'm going to say that's not already a part of the record, I just want a level playing field under the law, and for all of you to think outside of the box.

After watching the last few meetings on TV, I have come to the conclusion that some of the councilors are "Out of Order" and a pattern of actions are taking place again & again, This matter was put to bed earlier this year but the old boy network is back again.

The public must respect the council and the councilors must respect the public's opinion, and work with them.

The City Council operates under two types of public forums, one being a designated public forum where the government designates certain types of subject matters on there agenda, with vigorous debates back and forth on the subjects by councilors; the public must be silent, and doesn't have a right to disrupt the councilors, it is their arena. At the end of each subject, the council president looks to the gallery for any comments from the public and may recognize a citizen to speak; there again, it's still their arena and rules, the council may impose reasonable time, place and manner restrictions on speech as long as those restrictions are content-neutral and are narrowly tailored to serve a significant government interest.

In other words, the government could impose a 15-minute time limit on all participants as long as it did not selectively apply the rule to certain speakers, or it would violate the First Amendment.

Now when it comes to the "Public Comment or Open Forum" time for citizen commentary on issues, the 9th U.S. Circuit Court of Appeals explained in its 1990 decision White v. City of Norwalk: "Citizens have a enormous First Amendment interest in directing speech about public issues to those who govern their city."

These meetings, particularly the "Open Forum" period, are at the very least a limited public forum, during which free-speech rights receive heightened protection.

An Ohio Appeals court refused to dismiss the lawsuit of an individual who sued city officials after being thrown out of a city commission meeting for wearing a "ninja mask." In City of Dayton v. Esrati (1997)http://is.gd/XcTGe9, the Ohio Appeals court reasoned that the individual wore the mask to convey his dissatisfaction with the commission. "The government may not impose viewpoint-based restrictions on expression in a limited public forum."

In the 1964, U.S Supreme Court decision New York Times Co. v. Sullivan, Justice Brennan wrote "the question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

"The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'

"The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that change may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system, and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion' ...

"That erroneous statement is inevitable in free debate, and that it must be protected if the freedom of expression are to have the 'Breathing Space' that they 'need ... to survive' ...

"The constitutional guarantees require, we think, a federal rule that 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 ...

"We conclude that such a privilege is required by the First and Fourteenth Amendments."

In Edwards v. South Carolina, the U.S. Supreme Court overturned the conviction of protesting students, "saying that the First Amendment does not permit a state to make criminal the peaceful expression of unpopular views.'"

The June 14 meeting was a travesty of justice. A citizen was granted the floor by council president during the designated public forum. He stated he believed that the council violated the state law regarding the vote and would "check it out with the state tomorrow"; after, a councilor criticized him by trying to use the "bully-pulpit" on him, by saying "Quiet," he hopes you would tell the state about your "Vote No on Prop 2 1/2 shirt and sign that was brought into the chambers against our wishes." Please councilor, you know that this is perfectly legal, as long as one doesn't "Disrupt or Disturb the council."

I only used this as an as example, it's a citizens' right to speak out on issues. And work with his elected officials for the betterment of the community.

Unfortunately, many situations arise in which citizens are silenced because of the content of their speech or because they have disagreed previously with government officials. This raises the specter of censorship. Government officials may not silence speech because it criticizes them. They may not open a "Public Comment" period up to other topics and then carefully pick and choose which topics they want to hear. They may not even silence someone because they consider him a gadfly or a troublemaker.

It is equally clear that council concerns and interests in proscribing public commentary cannot outweigh the public's fundamental right to engage in "Robust Public Discourse on these Issues." When the government decides to offer a "Public Comment" period at an open meeting, it provides that citizens may exercise their First Amendment rights. The government may not silence speakers on the basis of their viewpoint or the content of their speech. The government must live up to the values embodied in the First Amendment.

This is America, we live in a free country where one has a right to question and debate their public officials at any time.

The council might use Robert's Rules of Order, intended to be adopted as a parliamentary authority for use by a deliberative assembly, but also must apply some common sense.

My information came from, First Amendment Center, The Library of Congress, The Ohio Appeals Court, The 9th Circuit Court of Appeals, and the U.S. Supreme Court. And a little common sense.

I Thank You.