Irvine School Board Public Comment Policies Limit Free Speech

“In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. … The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.”

–Justice Arthur Goldberg, concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 2998-299 (1964)

“Remarks by any person addressing the Board which reflect adversely upon the racial, religious, economic, or political views, character or motives of any person on the staff, and Board, or at the meeting are out of order. Persistence in such remarks shall be grounds for summary termination, by the Board president, of the person’s privilege of address.”

–Irvine Unified School District, Board Policy 9323, Conduct of Public Meetings

The public comment period at the Irvine Board of Education’s meeting on Tuesday, May 3 featured an exchange that calls into question whether Board Policy 9323 violates free speech rights guaranteed by the First and Fourteenth Amendment to the United States Constitution, Article I of the California Constitution, and the Ralph M. Brown Act.

At that meeting, Board President Ira Glasky opened the floor for public comments with a reminder that under Board policies, this was not the time for charges or complaints against individuals. He continued with the admonition that “any remarks that reflect adversely upon individual staff members are out of order as well, so please use your time wisely.”

Irvine resident Debbie Hilton Kamm came forward and made a public comment regarding an IUSD manager’s testimony as an expert witness for another school district in a federal court case. The first half of Kamm’s comment consisted of her reading from a court document disclosing the manager’s name, position title, and the expected subject matter of her testimony. Kamm then asked a series of policy questions concerning the appropriateness of IUSD employees providing expert testimony for other school districts. Aside from the initial mention in the court document, Kamm did not refer to the individual by name, nor did she accuse her of any misconduct.

At the conclusion of Kamm’s comment, Glasky thanked her, and then added: “Once again, if you have charges that you want to bring, this is not the opportunity or the forum in which to do so. I will encourage you once again to read our Board policy and this could lead to summary termination of your rights to address the Board.”

ACLU Warnings to City Council

The exchange between Kamm and Glasky came in the aftermath of recent controversy over the Irvine City Council’s policies regarding public comments that included two cautionary letters from the American Civil Liberties Union Foundation of Southern California (ACLU),  previously reported by Irvine Watchdog. The first ACLU letter, dated March 22, 2022, is available here. It warned the Council that: “To approve the revisions as drafted would be to codify grave violations of your constituents’ rights under California law and the Constitution.” One of the ACLU’s principal concerns was restrictions on the content of public comments:

“The proposed restriction plainly violates the First Amendment and the Brown Act. Meetings of the City Council constitute limited public forums.In a limited public forum, the government may enact reasonable restrictions to preserve the space for its intended purpose….. And the Brown Act itself indicates that the public shall have the right to speak on ‘any item of interest . . . within the subject matter jurisdiction of the legislative body.’ Cal. Gov’t Code § 54954.3(a). More generally, ‘[d]ebate over public issues, including the qualifications and performance of public officials [], lies at the heart of the First Amendment. Central to these principles is the ability to question and challenge the fitness of the administrative leader of a [government body], especially in a forum created specifically to foster discussion about [issues within the body’s purview].’ Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951, 958 (S.D. Cal. 1997) (citing Schenck v. Pro–Choice Network, 117 S. Ct. 855, 858 (1997); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 344–45 (1995); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1987); New York Times v. Sullivan, 376 U.S. 254, 270-71 (1974). As such, critiques of the actions or inactions of individual council members about issues within the Council’s jurisdiction are protected by these First Amendment and Brown Act principles.”

The second ACLU letter, dated April 19, 2022, is available here. It addressed the City Attorney’s interference with a resident’s public comment, in what is known in First Amendment jurisprudence as a prior restraint:

“Muting Ms. Fox as she addressed the Council was an unconstitutional prior restraint. A prior restraint may only be imposed by an injunction precisely tailored to specific statements after they have been found to be defamatory at trial. Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141, 1143 (2007). Otherwise, any prior restraint on alleged defamation is not permitted. Gilbert v. Nat’l Enquirer, 43 Cal. App. 4th 1135, 1139 (1996). It is settled that ‘prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’ Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The City Attorney does not have the authority to silence a member of the public addressing the City Council merely because the content of the speech is unpleasant or unflattering to an individual Councilmember even if he believes the comments may be slanderous. Rather, an official ‘who seeks or accepts public office invites and is properly subject to public criticism so far as it may relate to his fitness and qualifications for his office.’ Scott v. McDonnell Douglas Corp., 37 Cal. App. 3d 277, 289 (1974).”

Federal and State Protections of Free Speech

The ACLU’s letters rely on a large body of federal court decisions holding that the due process clause of the Fourteenth Amendment prohibits state and local governments from denying First Amendment rights under what is known as the incorporation doctrine. As Justice William Brennan wrote in a landmark Supreme Court decision cited by the ACLU: “It is true that the First Amendment was originally addressed only to action by the Federal Government …. But this distinction was eliminated with the adoption of the Fourteenth Amendment and the application to the States of the First Amendment’s restrictions.” (New York Times Co. v. Sullivan, 376 U.S. 254, 276-277 (1964).)

The California Constitution also protects free expression. Article I, section 2 states: “(a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article I, section 3 states: “(a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.”

A federal court has held that these provisions protect the public’s right to criticize employees at school board meetings: “Thus, under the California Constitution, District’s Board may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory.” (Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 727 (C.D. Cal. 1996).)

The Ralph M. Brown Act implements these constitutional rights by requiring local government bodies such as city councils and school boards to provide opportunities for public comment at all meetings. (Cal. Gov’t Code section 5954.3(a).) It further provides: “The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” (Cal. Gov’t Code section 5494.3(c).) (Further information on the Brown Act is available here.)

Does the IUSD Policy Violate Free Speech Guarantees?

One of the cases cited in the ALCU’s first letter to the City Council is specifically relevant to IUSD’s policy, Leventhal v. Vista Unified School District, 973 F. Supp. 951 (S.D. Cal. 1997).  In that case, the plaintiff made a public comment at a school board meeting in which she attempted to address the qualifications and job performance of the superintendent. The board president interrupted her, stating that under the applicable bylaw, her criticisms could not be made in a public board meeting. The bylaw in question stated that “[c]omplaints against an individual employee will not be heard at open Board meetings unless the individual employee consents.” (973 F. Supp. at 954.) It permitted the board president to “terminate a presenter’s address” at such a meeting “if a presenter persists, after a warning, to engage in improper conduct or remarks.” (973 F. Supp. at 953.)

The court analyzed the applicable case law and concluded that “the prohibitions on any criticism, ‘complaint or charge against an employee of the District’ contained in Vista Unified School District Bylaw No. 9002, §§ B and C, violate the Plaintiffs’ rights secured under the First and Fourteenth Amendments to the United States Constitution.” (953 F. Supp. at 962.)

In reaching this conclusion, the court quoted a Supreme Court decision: “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology is the rationale for the restriction.” (953 F. Supp. at 960, quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). The court then stated:

“The Bylaw effectuates a classic form of viewpoint discrimination. As the Baca court noted, the regulation ‘allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees’ conduct or performance).’ Baca, 936 F. Supp. at 730. This system engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and, ultimately, dynamic political change.” (953 F. Supp. at 960.)

On its face and as applied by Board President Glasky, IUSD Board Policy 9323 appears to be a more drastic intrusion on freedom of speech than the bylaw declared unconstitutional in the Leventhal case. As in Leventhal, Policy 9323 states in its first rule of conduct that: “No person shall orally initiate charges or complaints against individual employees of the District at a public meeting of the Board.” In the second rule of conduct, it declares to be out of order any public comment reflecting “adversely upon the racial, religious, economic, or political views, character or motives of any person on the staff, and Board.” Glasky restated that provision more expansively and ambiguously to prohibit “any remarks that reflect adversely upon individual staff members.”

The second rule of conduct continues: “Persistence in such remarks shall be grounds for summary termination, by the Board president, of the person’s privilege of address.” On its face, that sentence would seem to parallel the language in the bylaw in Leventhal that permitted the board president to “terminate a presenter’s address” at that meeting. However, by invoking the policy language after Kamm had concluded her comment, Glasky appeared to be threatening to permanently ban her from ever again addressing the Board. While such action would be patently unconstitutional under Leventhal and the other cases discussed herein, the constitutionality of Policy 9323’s first and second rules of conduct on their face appears highly problematic.

While not at issue in the May 3 meeting, Policy 9323’s fourth rule of conduct also deserves scrutiny. It states: “All persons addressing the Board must identify themselves by name and address.” The ACLU addressed at length the illegality of such a requirement in its March 22 letter to the Irvine City Council. It stated in part:

“Government Code Section 54953.3 states that members of the public cannot be required to identify themselves to participate in a meeting. Id. (‘A member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his or her name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance.’). Further, it is well settled that anonymous speech is protected under the Constitution as a time-honored tradition stretching back to our country’s inception. See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).”

Upon receiving the ACLU letter, the City Council promptly agreed to eliminate the name and address requirement for public comments. The Irvine Board of Education may wish to consider substantially revising Policy 9323 without waiting for the ACLU to demand it.

Information on participating in IUSD Board meetings is here.