BATTLE CREEK, Mich. (Michigan News Source) – The city of Battle Creek’s rules for citizen commentary at City Council meetings pose “some constitutional problems,” according to a national free speech watchdog nonprofit group.
Brennen VanderVeen, program counsel for The Foundation for Individual Rights and Expression (FIRE) reviewed the city’s rules for speech posted on the Battle Creek website and found issues.
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VanderVeen said the issue was with the City Council rule about what type of speech was permissible.
Free speech?
The rules state:
(4) A speaker will be ruled out-of-order by the Mayor or presiding Commissioner and the Commission will continue with its business, and the speaker may be required to leave the meeting after having been ruled out-of-order for a breach of the peace committed at the meeting as permitted by the OMA, when the speaker violates above sub-section 3 or the following:
(a) Becomes repetitive or speaks longer than the allotted time;
(b) Attempts to yield any unused portion of time to other speakers;
(c) Engages in a personal attack upon a city employee, administrator or Commissioner only if the personal attack is totally unrelated to the manner in which the employee, administrator or Commissioner carries out their public duties or office;
(d) Uses obscene or profane language;
(e) Engages in slanderous or defamatory speech;
(f) Uses derogatory racial, sexual or ethnic slurs or epithets relating to any individual or category of persons; or
(g) Engages in conduct that interrupts or disrupts the meeting.
VanderVeen spelled out his concerns with each provision.
(c) ENGAGING IN PERSONAL ATTACKS
VanderVeen said: “Although the government generally can require comments to be relevant, this provision poses a problem by combining it with a ban on personal attacks. Bans on personal attacks are generally unconstitutional because they are vague and inherently viewpoint discriminatory. Qualifying the ban by limiting it to irrelevant personal attacks does not really fix the issue, as negative comments are still singled out, and the rule encourages enforcement based on a comment involving a ‘personal attack’ rather than it simply being irrelevant.”
(d) OBSCENE OR PROFANE LANGUAGE
VanderVeen said: “Obscenity has a specific legal meaning. Under Supreme Court precedent, speech is obscene only if (1) the average person, applying contemporary community standards, would find that the speech, taken as a whole, appeals to the ‘prurient interest’; (2) the speech depicts or describes, in a ‘patently offensive’ way, sexual conduct defined specifically by the applicable law; and (3) the speech, taken as a whole, ‘lacks serious literary, artistic, political, or scientific value.’ So, although an obscenity ban is fine facially, using it to prohibit speech outside of that narrow definition is unconstitutional. In contrast, profanity is protected speech, so banning ‘profane language’ is unconstitutional.”
(e) SLANDEROUS OR DEFAMATORY SPEECH
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VanderVeen said: “‘Slanderous or defamatory’ speech is not constitutionally protected, but deciding whether something actually qualifies is a legal determination that should be made in court, not by a mayor or other official presiding over a meeting.”
(f) DEROGATORY RACIAL, SEXUAL OR ETHNIC SLURS OR EPITHETS
VanderVeen said: “These are all unconstitutional restrictions because they are arguably vague and necessarily viewpoint discriminatory.”
VanderVeen also had issues with rules the City Council adopted that allowed city officials to lengthen or limit the amount of time a speaker could talk.
That was problematic, VanderVeen saiad, because it can “give officials too much discretion to determine how long someone can speak. That kind of discretion is constitutionally problematic to the extent it allows an official to grant more time to favored speakers or less time to unfavored speakers.”