5 Minute Rule at City Commission Meetings

I meant to write this post earlier, but other obligations prevented me from doing so. Thus, it may seem a bit stale, but I offer it nonetheless for those who find interest in legal discussions.

Readers will recall that a couple weeks ago, our City Commission expanded the public's 3 minute comment period to 5 minutes. At the same time, the Commission moved to prohibit "racist, discriminatory and incitingly violent speech" I commented at the time that I thought the Resolution is probably illegal because I do not think the City can prohibit speech based on racial comment. Yawn.

But the meeting raised an interesting, if somewhat obscure, legal issue. At the meeting, the deputy City Attorney quoted the following language in support of the Resolution: "These fundamental values of "habits and manners of civility" essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these 'fundamental values' must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students....Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences."

In doing so, he was quoting Supreme Court Justice Burger in a case entitled Bethel School District v. Fraser. (For those of you following along at home, it can be found at 478 U.S. 675). I thought that quote sounded interesting as it allegedly applied as support for limiting public comment at a government function so, like I am occasionally wont to do, I went and read the case.

While the quote used by the City Attorney sounded appropriate at the time, I don't think it represented the holding of the case but was, instead, merely obiter dictum. The holding in the case related specifically to limitations that could be placed on students' speech by a school.

In fact, the Court in Fraser went on to distinguish its facts from those presented by another case, Cohen v. California. This was a famous case where the Supreme Court upheld a person's right to wear a coat that said "F*ck the Draft" in a public courthouse. The Court in Fraser said: "It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school."

In other words, a school has greater power to regulate the speech of its students than does a government to regulate the speech of its citizens. Thus, language utilized in a decision fleshing out a school's power to regulate does not directly apply to a government's power in other contexts.

Further, based on the right of a person to offensively advocate a position such as "F*ck the Draft," I am not sure how the Commission's original ban on speech that is "vulgar, profane or impertinent" will hold up. Maybe someone could wear a coat to the City Commission meeting that says "F*ck the Coal Plant."

(That last part was a joke. I am not advising anyone to do any such thing, especially if the person who does it lacks $100,000.00+ in discretionary funds for attorney fees.)

Seriously, though, I hope our Commissioners have given deep and serious consideration to their position. Freedom of speech is a sacred right in our society. Millions of people have died defending our constitutional rights. I do not mean to be overly dramatic, but proscribing this right is not something to be lighly decided over coffee at Baker Bob's. Is it really worthy of prohibition to protect someone's sensibilities?