Harassing Speech in a Limited Public Forum: a Double-Edged Liability Sword

by

Harassing Speech in a Limited Public Forum: A Double-Edged Liability Sword

By Rachel H. Sommovilla*

I. INTRODUCTION

As most public law attorneys know, members of the public can make some offensive and hostile remarks during the public comment period of a public meeting. Seattle, for example, has a regular commenter who refers to its councilmembers as Nazis, communists, and the Gestapo, and who peppers his comments with expletives. In September 2014, that city council rejected that commenter’s appeal of his exclusion from council chambers for off-point, abusive disruptions at council meetings.1 That same month, the city council of Richmond, California adopted measures to address meeting disruptions resulting from anti-gay rhetoric during the public comment portion of its meetings.2

Legislative bodies have the right and the duty to conduct their meetings in an orderly manner. Citizens have a constitutional right—and a statutory right under the Brown Act—to address such a local public body. And public employees have a general right to be free from a hostile work environment. The challenge is to balance these sometimes competing interests in the context of a public meeting.

This article first describes an employer’s basic duty to protect its employees from a hostile work environment, including from third parties. The article then examines the limitations on regulating speech by the public at meetings of local legislative bodies in California, as well as a local entity’s potential liability for both preventing potentially harassing speech, and for allowing it. Finally, the article describes one potential step local public entities can take to attempt to minimize some of these legal risks.

II. AN EMPLOYER HAS A DUTY TO PROTECT ITS EMPLOYEES FROM A HOSTILE WORK ENVIRONMENT

An employer has a duty to prevent and remedy instances of harassment of its employees. While most antidiscrimination laws, such as Title VII, bar discrimination in the "terms, conditions, or privileges of employment,"3 courts have interpreted antidiscrimination laws to prohibit hostile work environment harassment. In general, a hostile work environment claim involves "severe or pervasive" conduct enough to create a hostile or abusive work environment based on race, religion, sex, national origin, age, disability, veteran status, sexual orientation, among other categories, for a reasonable person in the same protected class as the plaintiff.4 Similar standards apply to claims under the Fair Employment and Housing Act (FEHA).5

Hostile work environment harassment claims, however, can pose difficult First Amendment problems where the harassment may encompass potentially protected speech, as opposed to physical touching or unprotected speech (such as threats or fighting words). The California Supreme Court has noted "that the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment"6 in the context of a suit against a private employer that permitted its employee to be the target of racial epithets repeatedly spoken by a fellow employee. However, courts have also recognized that the First Amendment protects speech that may violate a public employer’s harassment policy, but pertains to matters of public concern.7

[Page 11]

While courts have concluded that an employer may be liable for the harassment of its employees by third parties if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it,8 the First Amendment issues are thorny in this context—especially for public employers, where third party speech may include speech in a public or limited public forum. The U.S. Equal Employment Opportunity Commission ("EEOC") recognized this tension in an informal opinion letter entitled "Title VII: Harassment by third party members of the public" in 2012.9 The letter responded to a request for guidance on the question of a city’s Title VII obligation to control the actions of citizens during an arrest process. The EEOC letter noted that while "an employer would [not] be exempt from Title VII liability for failing to take reasonable steps to curtail citizen harassment of law enforcement officers," "the reasonableness of the employer’s corrective action would depend on the totality of the circumstances. These would include the nature of the alleged harassment, the specific context in which it arose, and practical limitations on the employer’s ability to respond to the harassment such as constitutional constraints on the city or on another public employer."

The "constitutional constraints on a city or public employer" are significant where citizens speak at public meetings and make derogatory or offensive comments regarding the local entity’s employees or members of its legislative bodies. There is a tension between hostile work environment liability concerns, on the one hand, and the free speech rights of citizens at public meetings, on the other.

The following outlines the public’s rights and limitations regarding speech at public meetings of local legislative bodies in California, and then describes one possible mechanism for walking the fine line between protecting employee rights as well as the speech rights of the public.

III. PUBLIC FREE SPEECH RIGHTS AT MEETINGS OF LOCAL LEGISLATIVE BODIES

As a matter of Constitutional law, a city council meeting constitutes a limited public forum.10 A council can regulate the time, place, and manner of speech, as well as the content of the speech, so long as content-based regulations are reasonable, viewpoint neutral, and uniformly enforced.11 Accordingly, while members of the public have broad rights to free speech at such meetings under both the First Amendment to the United States Constitution and Article I, Section 2 of the California Constitution12, a legislative body may properly limit the matters to be addressed by the public to those within that body’s subject-matter jurisdiction.

The Ralph M. Brown Act generally provides that the legislative body of a local agency must hold its meetings open to the public except as expressly provided. The Act allows members of the public to "directly address the legislative body" but limits that right to discussion of "any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body,. . . ."14

A city council, therefore, can limit a speaker from speaking on a matter not within its subject matter jurisdiction and may stop a person if the speech becomes irrelevant or repetitious.15 It may not, however, limit only certain views, even if those views include false or defamatory speech, given the broad protections of speech under California’s Constitution. A local legislative body, therefore, must take care to enforce any limitation on public comment in a viewpoint neutral manner.16 A policy prohibiting criticism of employees, for example, is impermissible.17

A council’s rules are constitutional if they "only permit[ ] a presiding officer to eject an attendee for actually disturbing or impeding a meeting."18 The Brown Act allows removal of individuals who are willfully interrupting a meeting so as to render the orderly conduct of such meeting infeasible, and provides that if order cannot be restored by the removal of those individuals, the legislative body may clear the meeting room and continue in session.19 Penal Code Section 403 further provides that any person who willfully disturbs or breaks up any assembly or meeting of being guilty of a misdemeanor.20 In California, therefore, an individual may be removed or ejected from a public meeting if he or she actually disrupts that meeting.

The level of disruption need not necessarily go so far as to cause a breach of the peace or to constitute fighting words, given that a city council meeting is "a governmental process with a governmental purpose," but any ordinance regulating expressive conduct at city council meetings must be narrowly drafted and applied, so that speech is only regulated when it actually disrupts, disturbs or impedes the orderly conduct of the meeting.21 The test is whether the conduct, not the content of the words themselves, causes actual disruption.22

[Page 12]

What constitutes an actual disruption? Actual disruption "does not mean constructive disruption, technical disruption, virtual disruption . . . or imaginary disruption."23 A provocative Nazi gesture after the close of public comment period, for example, was held not to constitute such a disruption.24 Courts have held that using profanity to criticize city staff was not a disruption, and have concluded that "the disturbance must be something more than the bare violation of a rule."25 On the other hand, courts have indicated that an actual disruption may exist where an individual defies a mayor’s order to cease certain disorderly conduct (for example, where an individual was trying to get members of the public who agreed with his viewpoint to stand despite mayor’s order to cease).26 Dumping gallons of garbage on the floor during a school board meeting has been held to constitute a disruption.27

Determining whether personal attacks against elected officials or staff must be permitted can be tricky. Attacks against the character or motives of any person irrelevant to the legislative body’s business, or irrelevant vulgar comments may be ruled out of order, provided it is done so without reference to the viewpoint of the speech. However, comments relating to the agenda item at hand, or comments made during the public comment period regarding matters within the local legislative body’s subject matter jurisdiction, are generally allowed. 28 Courts have indicated that permissible comments may include relatively offensive attacks of city councilmembers. Notably, in 2013 the Honorable Dean Pregerson considered motions for summary judgment, in which plaintiffs claimed that the Los Angeles City Council’s Rules of Decorum violated the First Amendment. (Plaintiffs also challenged the City’s ordinances regulating vending and other activity on the boardwalk).29 In considering the as-applied challenge, the Court noted that criticism of elected officials is "speech at the heart of the First Amendment," also noting that "[a]s an elected official, a City Council member will be the subject of personal attacks in [offensive and profane] language." While also acknowledging that "[i]t is asking much of City Council members, who have given themselves to public service, to tolerate profanities and personal attacks," courts have held "that is what is required by the First Amendment."30

Therefore, when it comes to critique and attacks of a local government’s elected officials, very little may be outside what is outside the locality’s subject matter jurisdiction. If a speaker ignores the presiding officer’s out-of-order rulings, however, thereby causing a disruption with repetitive irrelevant speech that impedes the progress of the meeting, or otherwise continually disrupts the meeting, he or she may then be removed from the meeting.

IV. WAYS TO HANDLE BIAS-MOTIVATED CRITICISM AND HARASSMENT OF EMPLOYEES AND ELECTED OFFICIALS

What does this mean for a city’s potential liability? As noted above, a public entity can be held liable for a hostile work environment created by a third party.31 But courts have indicated that the public has a broad right to critique public officials at public meetings, and that attempting to curtail this could result in substantial attorneys’ fee awards. Violence and threats of violence fall outside the protection of the First Amendment. If threats or actual violence is involved, a restraining order may be obtained under the Workplace Violence Safety Act if there is a credible threat of violence toward an employee.32 Such an order would prevent an individual from attending meetings. Other speech outside the scope of the First Amendment, such as obscenity and fighting words, may be prohibited, although such speech is narrow, and the fighting words doctrine is narrowest, if indeed it exists at all, with respect to criminal prosecution for speech directed at public officials.33

For speech that is not in an unprotected category such as obscenity, fighting words, or threats, the government may not regulate speech based on hostility or favoritism towards a message. For example, the Supreme Court struck down an ordinance that imposed special prohibitions on speech regarding race, color, creed, religion or gender. The Court held that the city’s desire to communicate to minority groups that it does not condone the group hatred of bias-motivated speech did not justify selectively silencing speech on the basis of its content.34 And while, as noted above, the California Supreme Court has found that pervasive use of racial epithets that has been judicially determined to violate FEHA is not protected by the First Amendment35, that case involved a prior judicial determination and a private employer.

[Page 13]

What then are the possible solutions regarding bias-motivated speech at local public meetings directed to staff and officials that protect the public’s right to speech as well as help prevent creation of a hostile work environment? Most local legislative bodies have rules preventing speakers from speaking out of turn, limiting each speaker’s time, requiring speakers to speak on the agenda topic, and requiring speakers to speak on matters within the localities’ subject matter jurisdiction. Enforcing these rules with warnings and out-of-order rulings prior to ejection certainly help lawfully manage meetings. Some cities, like Seattle, have imposed a longer ban on certain individuals for repeated, consecutive disruption at meetings.36 However, California cities should likely avoid this approach where possible, since the Brown Act focuses on specific disturbances during a particular meeting in noting that individuals who willfully interrupt a meeting so as to render the orderly conduct of the meeting infeasible may be removed.37 In addition, a federal district court in California noted that barring an individual from speaking for 30 days is a "weighty punishment" in ruling against the city on the as-applied challenge to its rules of decorum.38

For bias-motivated criticism or harassing speech in particular, some California cities have adopted policies in which the city’s anti-harassment policy is read aloud at meetings in which harassing speech is made. For example, San Francisco has adopted a policy in which its anti-discrimination or harassment policy is read by the chair at a city meeting. Under that policy, the chair notes that comments in violation of the city policy are not condoned and play no role in city decisions. Under San Francisco’s policy, the chair also advises on the record that any City employee offended by discriminatory or harassing remarks is excused from the meeting.39 Prior to adopting its policy, an employee sued San Francisco after a public speaker accused her of having "pregnancy brain."40 The City of Richmond recently adopted a similar policy in October 2014, and that policy is contained in its City Council’s posted agenda.41

While adopting such a policy may not be a perfect solution, this approach allows a local entity to protect the public’s freedom of speech, as well as the rights of its employees, while clarifying that the local entity does not condone harassing speech and that it plays no role in its official decisions.

* Rachel Sommovilla is an Assistant City Attorney for the City of Richmond and a graduate of UC Berkeley School of Law.

[Page 14]

——–

Notes:

1. See "Disruptive Commenter Zimerman Still Barred From Council Chambers" by Erica Barnett, available at http://www.seattlemet.com/news-and-profiles/publicola/articles/disruptive-commenter-zimerman-still-barred-from-council-chambers-september-2014 (last visited February 20, 2015).

2. See "Richmond City Council passes new rules to curb meeting disruptions" by Jennifer Baires, available at http://www.contracostatimes.com/contra-costa-times/ci_26553362/richmond-city-council-passes-new-rules-curb-meeting (last visited February 20, 2015).

3. 42 U.S.C. §§ 2000e-2(a)(1).

4. See, e.g., McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1113-15.

5. See, e.g., Thompson v. City of Monrovia (2010) 186 Cal. App. 4th 860, 876 (plaintiff alleging racially hostile work environment is required to show: (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the Department is liable for the harassment).

6. Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121, 135.

7. See, e.g., Bauer v. Sampson (2001) 261 F.3d 775 (where college district disciplined a professor for newspaper writings regarding the appointment of the district’s Chancellor and district board actions on the basis that such writings violated its workplace violence, discrimination, and harassment policies, court held that the professor’s interest in making the statements outweighed the college’s interest in regulating his speech and awarded attorney fees).

8. See, e.g., Freitag v. Ayers (9th Cir. 2006) 468 F.3d 528, 539; 29 C.F.R. § 1604.11e (with respect to sexual harassment).

9. The October 1, 2012 letter is written by Assistant Legal Counsel Carol Miaskoff and is available at www.eeoc.gov/eeoc/foia/letters/2012/title_vii_third-party_citizen_harassment.html (last visited February 20, 2015).

10. White v. City of Norwalk (9th Cir. 1990) 900 F.2d 1421.

11. Perry Education Ass’n v. Perry Local Educators’ Ass’n (1983) 460 U.S. 37, 46; Norse v. Santa Cruz (9th Cir. 2010) 629 F.3d 966, 975.

12. The California Constitution provides "an even broader guarantee of the right of free speech than does the First Amendment" prohibiting a legislative body from censoring speech, even if the speech is or may be defamatory. Baca v. Moreno Valley Unified School Dist. (C.D. Cal. 1996) 936 F.Supp. 719, 727-28. The superior court in Los Angeles recently interpreted this much more broadly in the billboard context, noting that strict scrutiny, as opposed to intermediate scrutiny, applied in that context, per the California Constitution (as opposed to the Federal Constitution). See Lamar Central Outdoor, LLC v. City of Los Angeles, Superior Court of Los Angeles, October 14, 2014 Decision and Order Granting Writ of Mandate.

13 White, supra, 900 F.2d at pp. 1424-26.

14. Government Code Section 54954.3(a) (emphasis added).

15. White, supra, 900 F.2d at p. 1425 ("speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing" but the moderator "certainly may stop him if his speech becomes irrelevant or repetitious"). Irrelevant speech that is also obscene may be limited on the additional ground that obscene speech may be limited, although this is a narrowly limited class of speech. See, e.g., Roth v. United States (1957) 354 U.S. 476, 485-87.

16. Baca, supra, 936 F.Supp. at pp. 728-29; Norse v. Santa Cruz (9th Cir. 2010) 629 F.3d 966, 975.

17. Leventhal v. Vista Unified School Dist. (S.D. Cal. 1997) 973 F.Supp. 951; Baca, supra, 936 F.Supp. at pp. 730-31.

18. Acosta v. City of Costa Mesa (2013) 718 F.3d 800, 811.

19. Government Code Section 54957.9. Members of the press may remain unless they participated in the disturbance.

20. In light of First Amendment protections, courts have construed this section in a limited way, holding that Penal Code Section 403 authorizes imposition of criminal sanctions only when the defendant’s activity itself, not the content of the activity’s expression, substantially impairs the effective conduct of a meeting. In addition, in order to be guilty of such a misdemeanor, a defendant must substantially impair the conduct of meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting of which he knew or as a reasonable man should have known. In Re Kay (1970) 1 Cal.3d 930, 942-43; see also McMahon v. Albany Unified School District (2002) 104 Cal. App. 4th 1275 (dumping gallons of garbage on floor of schoolroom during school board meeting was conduct sufficient to support an arrest for disturbing a public meeting).

21. White, supra, 900 F.2d at pp. 1425-26.

22. Acosta v. City of Costa Mesa (2013) 718 F.3d 800.

23. Norse, supra, 629 F.3d at p. 976. For this reason, a limitation on "disorderly, insolent, or disruptive behavior" did not pass muster, because it did not limit restricted conduct to that involving actual disruption. Acosta, supra, 718 F.3d at p. 815.

24. Norse, supra, 629 F.3d at pp. 975-76.

25. Dowd v. City of Los Angeles (C.D. Cal. 2013) 2013 WL 4039043.

26. Acosta, supra, 718 F.3d at p. 828. See also Kindt v. Santa Monica Rent Control Bd. (9th Cir. 1995) 67 F.3d 266 (holding it was permissible to remove a man who had disrupted the same meeting earlier when his frequent partner in disruption made an obscene gesture which threatened to start the disruption again).

27. McMahon, 104 Cal. App. 4th 1275.

28. White, supra, 900 F.2d at p. 1425; 78 Ops. Cal. Atty. Gen. 224 (1995).

29. Dowd v. City of Los Angeles (C.D. Cal. Aug. 7, 2013) 2013 WL 4039043.

30. Dowd, 2013 WL 4039043 at *21. The Brown Act also explicitly prevents the legislative body from prohibiting "public criticism of the policies, procedures, programs, or services of the agency, or the acts or omissions of the legislative body." Cal. Gov’t Case § 54954.3(c).

31. Dowd v. City of Los Angeles (C.D. Cal. May 23, 2014) 2014 WL 2937478. In Dowd, Magistrate Judge Segal awarded the plaintiffs over $600,000 in attorneys’ fees in a case against the City of Los Angeles, even though the jury awarded only nominal damages.

32. Code of Civil Procedure Section 527.8; City of San Jose v. Garbett (2010) 190 Cal. App. 4th 526 (finding that a member of the public’s frequent and angry statements that he would "take matters into [his] own hands" if the city clerk or the council did not take action, coupled with allusions to a recent mass killing at a city council meeting, justified a restraining order).

33. See, e.g., United States v. Poocha (9th Cir. 2001) 259 F.3d 1077 (to characterize speech as fighting words, the government must prove that there existed a likelihood that the person addressed would make an immediate violent response).

34. R.A.V. v. City of St. Paul (1992) 505 U.S. 377.

35. Aguilar, supra, 21 Cal. 4th at pp. 141-42.

36. See note 1 (discussing 28-day ban from council chambers).

37. Cal. Gov’t Code § 54957.9.

38. Dowd, 2013 WL 4039043 at *19-21.

39. San Francisco’s policy is available at http://www.sfcityattorney.org/modules/showdocument.aspx?documentid=1735, at pp. 178-179 (last visited February 20, 2015)

40. See http://wwww.sfgate.com/bayarea/matier-ross/article/Former-chief-of-Building-Inspection-gets-damages-2598053.php. According to the article, the case was complicated by events outside of the public hearing context as well.

41. City council agendas are available at http://www.ci.richmond.ca.us/archive.aspx.