Speaker 1: (00:00)
Some critics of the new rules for public testimony at the county board of supervisors, say it limits the public's right to free speech reigning in speech and behavior at government forums is a tricky issue. One that can raise concerns about first amendment protections. So I spoke with an expert on the subject attorney David Snyder, executive director of the first amendment coalition, David, welcome to the program. Thank you.
Speaker 2: (00:25)
Thank you for having me.
Speaker 1: (00:26)
As we just heard, the San Diego county board of supervisors is making an effort to create public testimony rules that will maintain civility and order is a government body imposing stricter time limits and telling folks how to behave is that compatible with the first amendment.
Speaker 2: (00:43)
It can be, but it really depends on the details on what exactly their rules say. A government body is permitted to impose restrictions on public testimony. So long as those restrictions don't directly restrict or purport to punish the content of the speech. The content of the speech in this context is mostly sacrosanct under the first amendment, but the courts have recognized that an elected body has the need the obligation really to maintain order.
Speaker 1: (01:19)
And let's talk about that. So crackdowns on the content of the speech, let's say crackdowns on individual words to, when does that come up against first amendment protections?
Speaker 2: (01:30)
I hesitate to say always, but I would say almost always. So for example, there is no exception for first amendment protections for what we think of as hate speech, you know, 99% of the public would view as a boring, as inappropriate as uncivil that is likely protected under the first amendment, given the specific circumstances again, unless it leads to an actual disruption of the meeting. So the first amendment is broadly protective of speech, even that speech, which, which a vast majority of people would find harmful or offensive. Now, one thing that elected bodies have the ability to do is to counter that kind of speech with more speech, to condemn it, to strongly encourage, let's say people in a public meeting to maintain civility. And I know that in the case of the board of supervisors here, several supervisors have done that. They've said this kind of speech is inappropriate. It's harmful to the civil discourse going on here. It's apparent we shouldn't tolerate this kind of speech. So that kind of criticism is not only permissible under the first amendment, but in some ways it's the desired outcome. When you hear speech that you find offensive or disagree with fundamental tenant of the first amendment, is that the best response to that is more speech rather than having the government step in and what speeches appropriate or not
Speaker 1: (03:01)
Could that kind of speech and behavior directed towards county staff constitute a hostile work environment.
Speaker 2: (03:08)
If this kind of speech happened in an office setting, if somebody used racial slurs or what have you in an office setting, I think that certainly could constitute a hostile work environment. This however is, uh, a public forum. Um, and technically it's, it's called a limited public forum under first amendment jurisprudence. And the context here is very different, the kinds of speech that are permitted and the kinds of limitations that are put on government's ability to stop that speech are quite broad. And so I'm not an employment law expert, but I think a hostile work environment claim in this kind of setting based on, for example, a racial slur would probably have a hard time in the courts, given the context,
Speaker 1: (03:52)
We've heard reports of people making threats, cursing, even mob type takeovers of public meetings in various parts of the country. Do you have any insight as to how we got to this and, and how we move past it?
Speaker 2: (04:06)
I agree with the premise that we've seen a real explosion. And one thing that I think is absolutely crucial is that the response to this kind of behavior not be trying to shut down the expression by folks who were, who are using insulting and even harmful language. I think when government goes to the extreme of saying, we're not going to let you speak that not only is probably a violation of the first amendment, but in a way it actually fosters the kind of polarization that, that I think these kinds of disruptions flow from when government acts in a heavy handed way. I think that ultimately causes a worst backlash in the end. I think government should be in the position of letting speech go forward, but then condemning from, from their positions of relative power and making clear, at least in a rhetorical way that this kind of speech is not going to be tolerated.
Speaker 2: (05:05)
Now that's different again from saying that we're not going to tolerate it as a legal matter. We're not going to let you say it literally that's a first amendment violation, but I think government can go a long way to setting the parameters of appropriate civil discourse by speaking, and by saying, we won't be tolerating this kind of language now, do they actually enforce that as a legal matter again, that's probably a problem from a first amendment perspective, but the government is in a position kind of uniquely powerful rhetorical position to set the parameters and the boundaries of,
Speaker 1: (05:42)
Well, the attorney general Merrick Garland recently directed the FBI to work with jurisdictions where unruly school board meetings are taking place. Now he's received a lot of criticism for that. Many people think that's government overreach. What's your opinion?
Speaker 2: (05:58)
Well, I think in instances where speech from the public amounts to actual threats, well, then there's a reason for the government to get involved in potentially a heavy handed way. But if what we're talking about are actual threats, then the first amendment does not protect those. But an actual threat is quite narrowly defined under first amendment law. It means the threat of violence against a specific individual that is capable or likely to be carried out. So rhetorical statements, those would generally be protected, but actual threats or intimations of physical violence. Yeah. I mean, those can, can cross the line. And I do think it's appropriate where there are those kinds of threats for law enforcement to get involved in some capacity. But again, the threat is very, very narrowly defined under first amendment law
Speaker 1: (06:50)
Or new rules and regulations the county or any other government agency comes up with to try to maintain orderly public comment. That will probably be challenged in court. So my question to you is what do you see as the best argument in support of making those kinds of changes,
Speaker 2: (07:09)
Rules of decorum in the abstract, at least there's no problem with those from a first amendment perspective. It really depends on how specific they are and how they are enforced. I think civil discourse is absolutely crucial and sort of setting aside my first amendment advocate hat. I would say that civil discourse and refraining from the use of racial slurs and insults is absolutely the best course. You know, we sort of all learned that or most of us do in kindergarten. That's the best way to go in the extreme instances where the public comment really gets out of hand. Sure. Then rules of decorum can be important to ensure that the board of supervisors can conduct its business in an orderly and efficient manner. I think rules of decorum are not necessarily problematic and there are many models of these all around the country. Many of these models have actually been tested in the courts. So there's a fair amount of case law about how far these rules can go and how they can be enforced. So in drawing up these rules, I suspect the board of supervisors has looked at some of that case law and determined what passes the test legally and what does not. But I don't know.
Speaker 1: (08:19)
I've been speaking with David Snyder, executive director of the first amendment coalition, David, thank you very much.
Speaker 2: (08:25)
Thank you for having me.
