The Brown Act
The primary body of law governing the conduct of meetings of legislative bodies and other local legislative bodies in California is the Ralph M. Brown Act.1 This discussion focuses on those provisions of the Brown Act that address participation by members in meetings of legislative bodies, and the authority of those bodies to address behavior that disrupts the ability of the body to conduct the public’s business. For a more comprehensive guide to the Brown Act, refer to Open & Public IV: A Guide to the Ralph M. Brown Act, published by the League of California Cities.2
The Brown Act seeks to strike a balance between the right of the public to participate in meetings of their legislative bodies with the need for those bodies to conduct the public’s business effectively and productively. Of course, the extent to which the Brown Act strikes the proper balance is a matter for debate.
The Brown Act generally requires the public’s business to be conducted in open and public meetings, and that the public be provided prior notice of the matters that will be considered at the meeting.3 The Brown Act also recognizes the right of the public to participate in meetings by providing comment on items on the agenda, and on matters not on the agenda but within the subject matter jurisdiction of the body.4 Moreover, individuals, as well as members of the news media, may record public meetings.5
The Brown Act specifically provides that a legislative body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.”6 Federal courts, employing a First Amendment analysis, have similarly invalidated rules aimed at shielding public employees and officials from public criticism at meetings.7
The Brown Act authorizes legislative bodies to adopt reasonable regulations on public participation.8 This authority includes adopting regulations on public testimony. Such regulations must be enforced fairly and without regard to the viewpoint of the speaker. Similarly, the body may regulate the recording or broadcast of the meeting upon making a finding that the noise, illumination, or obstruction of view from the recording would constitute a persistent disruption of the proceedings.9
Significantly, the Brown Act also expressly authorizes the legislative body to remove from a meeting those persons who willfully interrupt the proceedings. If order still cannot be restored, the legislative body may order that the room be cleared. The legislative body must allow members of the news media who have not participated in the disturbance to remain in the meeting room and observe the meeting. The legislative body may establish a process to permit individuals not responsible for the disturbance to reenter the meeting room.
Other Statutory Provisions
Independently of the Brown Act, California Penal Code section 403 makes it a misdemeanor to willfully disturb or break up a lawful assembly or meeting unless the person has legal authority to do so. McMahon v. Albany Unified School District10 discusses the application of this statute.
The plaintiff dumped bags of garbage on the floor during a school board meeting. He was arrested for violating Penal Code section 403, and sued for unlawful arrest.
The court concluded that the plaintiff’s arrest was proper because he initially had been warned not to dump the trash, and the body was unable to proceed with the meeting because of plaintiff’s conduct. As the court explained, unless the plaintiff was arrested, “[e]ither the meeting would have been further delayed at some point while McMahon picked up the garbage or other speakers would have had to stand near the trash in order to address the board and audience members would have been forced to peer over a mound of garbage in order to watch a public body perform its duty.”11 Accordingly, the court concluded, the trash dumping did not merely “disturb the sensibilities” of the board members. Rather, it actually impaired the ability of the body to effectively conduct its meeting.
Additionally, California Government Code section 36813 – which is not part of the Brown Act – authorizes a legislative body to address disruptions by members of the council. That provision states that a legislative body “may punish a member or other person for disorderly behavior at a meeting.” In exercising this authority, the council must act within constitutional constraints.12
First Amendment Principles Governing Legislative Body Meetings
The ability of a legislative body to address disruptions of its meetings within the constraints of the law would be difficult enough if the governing law consisted solely of these state code provisions. Courts, however, have concluded that a legislative body meeting is a limited public forum for purposes of First Amendment analysis, adding additional complexity to this area.13
As the Ninth Circuit has explained, “[c]itizens have an enormous [F]irst [A]mendment interest in directing speech about public issues to those who govern their city.”14 Accordingly, the provisions of the Brown Act and Penal Code section 403 authorizing the legislative body to address disruptions must be implemented consistent with First Amendment principles.
In White v. City of Norwalk, the Ninth Circuit Court upheld a city ordinance that authorized the legislative body to order removed individuals who uttered “personal, impertinent, slanderous or profane” remarks if the remarks “disrupted, disturbed, or otherwise impeded” the conduct of the meetings. The court stated that the presiding officer should not rule speech out of order “simply because he disagrees with it, or because it employs words he does not like.”15 The court explained, however, that under the challenged ordinance, “[s]peakers are subject to restriction only when their speech ‘disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting.’ So limited, we cannot say that the ordinance on its face is substantially and fatally overbroad.”16 More specifically, the court explained:
A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies. The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner. Indeed, such conduct may interfere with the rights of other speakers.
Of course the point at which speech becomes unduly repetitious or largely irrelevant is not mathematically determinable. The role of a moderator involves a great deal of discretion. Undoubtedly, abuses can occur, as when a moderator rules speech out of order simply because he disagrees with it, or because it employs words he does not like. But no such abuses are written into Norwalk’s ordinance, as the City and we interpret it. Speakers are subject to restriction only when their speech “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting.” So limited, we cannot say that the ordinance on its face is substantially and fatally overbroad.17
In Norse v. City of Santa Cruz,18 the Ninth Circuit explained that legislative bodies may “regulate not only the time, place, and manner of speech in a limited public forum, but also the content of speech – as long as content-based regulations are viewpoint neutral and enforced that way.”19 Indeed, the legislative body may “close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment period has closed.”20
The Norse court emphasized, however, that legislative bodies may not “extinguish all First Amendment rights” at a public meeting.21 For example, a member of the public may not be ordered removed from the meeting merely for making an inflammatory gesture, such as a “Nazi salute,” unless this conduct was itself actually disruptive.22 The Norse court emphasized that legislative bodies are not free to define “disruption” in whatever manner they choose. Rather, the court emphasized that “[a]ctual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc23 disruption, or imaginary disruption.”24
The Ninth Circuit recently emphasized the requirement that both the city rules of order regulating conduct at public meetings – and the actual application of those rules – be limited to conduct that is actually disruptive, at least to the extent that the person is to be removed from the meeting for the conduct.25 Because the challenged ordinance regulating “insolent” conduct during a meeting could not be narrowly construed to apply only when the “insolent” conduct actually disrupted the meeting, the court invalidated that provision of the ordinance.26
In applying rules prohibiting disruptions of meetings, the requirement of viewpoint neutrality is critically important. Courts have invalidated orders that individuals be removed from meetings after finding that the actions were based on the viewpoints of the speakers, or that the speech at issue offended the sensibilities of the public officials.27
California courts have also applied First Amendment principles to limit the circumstances in which a body may order a member of the public removed from a meeting for behavior the body deems to be disruptive. In re Kay28 involved the scope of California Penal Code section 403. The court recognized that the orderly conduct of public meetings protects the right to free speech because “[f]reedom of everyone to talk at once can destroy the right of anyone effectively to talk at all.”29 The court concluded, however, that Penal Code section 403 does not “grant to the police a ‘roving commission’ to enforce Robert’s Rules of Order.”30
Accordingly, the court concluded that Penal Code section 403 must be limited to those situations where “a member of the public substantially impairs the conduct of the 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.”31 The court expressly cautioned that, “[i]f any audience participation is permitted the rules regulating who may speak cannot be used to silence a participant merely because his views happen to be unpopular with the audience or with the government sponsors of the meeting.”32
Again, a common theme among all of these cases is that legislative bodies, in seeking to address disruptions, must do so in a consistent, viewpoint neutral manner.