Thursday, Sept. 15, is the International Day of Democracy, when the importance of media freedom to democracy is celebrated. It is also a day to examine how local jurisdictions use the democratic process to carry out local business.
In August, Gov. Gavin Newsom signed Senate Bill 1100 into law, clarifying parts of the Brown Act to more explicitly define what behaviors are permitted during public meetings. Specifically, it defines what constitutes a “disruption” to a meeting. But who decides what is “disruptive,” and does the new law raise First Amendment issues?
David Loy, legal director at the First Amendment Coalition, says that SB 1100 is a law that his organization “can live with,” if it is closely adhered to and only affects expression in meetings that genuinely disrupts the proceedings.
“Our coalition stands for maximum possible transparency and freedom of speech,” he said. “We recognize that in some limited circumstances, there can be situations where individuals speak at public meetings and genuinely disrupt those meetings, not by the content or viewpoint of their speech, but by doing things like refusing to yield the floor when their time is done, or yelling loudly and speaking over other people and stopping the meeting in its tracks.”
Loy pointed out that the Brown Act, which governs the conduct of public meetings and has been the Bible for local legislative bodies in the state since 1953, had previously allowed for a body to clear the entire chambers when someone was disruptive.
The new version of the law is “less drastic,” he said, and allows for individuals to be removed from meetings after first being given a warning. The thrust of the law is to allow for meetings to continue as smoothly as possible to conduct public business.
Express yourself … within reason
It has been said that to really get a feeling for the pulse of a city, one need only listen to the public comment portion of its meetings. Most municipalities have an “anything goes” policy for public comments that aren’t tied to something on the meeting’s agenda. This means that, for two or three minutes, a person can get up before the body and the audience and share their feelings on local rent ordinances, supply-side economics, the joys of dahlia propagation, recite a poem or — as witnessed once in Benicia — play the flute.
But not everyone who shares at meetings wants to express themselves musically. Some are angry at the mayor or councilmembers, or local laws, or social issues that they’d like to address, and they can get personal against city officials and even threatening.
This reached its crescendo in Los Gatos last year as people disrupted council meetings, stopping proceedings because they were angry about the town’s support for LGBTQ issues, Black Lives Matter, and even threatening the mayor and showing up at her house.
The so-called disruptions prompted Assemblymember Evan Low, D-Campbell, and state Sen. Dave Cortese, D-San Jose, to pen a letter to Los Gatos Town Manager Laurel Prevetti on Oct. 14, 2021.
“(T)here can be situations where individuals speak at public meetings and genuinely disrupt those meetings … by doing things like refusing to yield the floor when their time is done, or yelling loudly and speaking over other people and stopping the meeting in its tracks.”
David Loy, First Amendment Coalition
“Bullying, harassment, and intimidation at public meetings are absolutely unacceptable on their own, but we were horrified to learn that the Mayor — the only person of color on the Town Council — and her family have also been targeted away from Town property,” reads the letter, which was also sent to California Attorney General Rob Bonta and Santa Clara County District Attorney Jeff Rosen.
Prevetti responded on Oct. 28, agreeing that escalating “hateful and inappropriate speech” at council meetings and beyond was indeed a problem. She said she would like to work with the lawmakers to create legislation to clarify meeting disruptions with State Penal Code consequences.
The result was SB 1100, put forth by Low and Cortese, barring “disruptive” behavior at public meetings in California. “Disruptive” is defined as “engaging in behavior … that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting.”
The law acknowledges the First Amendment but says that if a person’s comments disrupt a public meeting to a great degree, then the “rights of other members of the public” are affected and impede the legislative body from continuing its work on behalf of the public.
You’ve been warned
In his pitch for the law, Cortese called some provisions in the Brown Act “antiquated.” Before SB 1100, the Brown Act held that legislative bodies could address disruptions through removal of an individual or group of individuals that “willfully interrupt” the proceedings. However, Cortese maintained, the definition of willful interruption “remains vague.” SB 1100 was an attempt to define willful interruption more explicitly and lay out protocol for what steps to take, legally, once a legislative body determines someone is being disruptive. For starters, the person must be first given a warning that they can be removed if they don’t stop their behavior.
Though the law more concretely defines “disruptive,” now that the law is in effect, what’s to stop local officials from deciding anyone is disruptive if they don’t like what they have to say?
A woman who addressed the Los Gatos Town Council in August of last year is a good example of a person exercising their First Amendment rights at a meeting, no matter how offensive her words might be to some, Loy said.
During public comment, a woman identifying herself as Eden Burke called then-Mayor Marico Sayoc a “terrorist,” a “coward to the Communist Chinese party,” and a “person with no conscience” for what she said was the town’s support of “diversity and inclusion,” critical race theory, LGBTQ residents, and Marxism. Burke also questioned Sayoc’s parenting and said that her children hate her. As she spoke, the mayor sat and listened quietly.
“If someone is speaking at a city council meeting or a county board of supervisors or school board or any body governed by the Brown Act, they have the right to their point of view and they have a right to say their piece during their time,” said Loy. “You can be as controversial as you wish. That’s freedom of speech.”
Sayoc is quoted in a release Cortese’s office put out in February of this year, after he introduced his bill.
“I look forward to collaborating with Senator Cortese and Assemblymember Low as they work to ensure local governments can continue to serve their residents without disruptions caused by malicious attempts to intimidate people who are participating in democracy.”
On Oct. 5 of last year, a Los Gatos council meeting had to be halted because someone made disparaging comments about Sayoc’s son.
As written, SB 1100 doesn’t address harassment or insults of public figures, unless it disrupts the course of a meeting. Loy said that Burke’s comments could indeed be seen as bullying.
“I suppose someone might argue the woman speaking in the video is a ‘bully,’ but nothing she said would justify removing her from the meeting under SB 1100 as it was signed into law, much less the First Amendment,” he said.
“I certainly hope the First Amendment will be respected and honored.”
This article is part of Local News Matters’ participation in Democracy Day: a nationwide initiative by all types of media to draw attention to the crisis facing American democracy and provide context and information to encourage public dialogue.