The ACLU Gives Pulido and the Santa Ana City Council a Constitutional Smackdown: YOU Violated the Law!

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[Editor’s note: OJB received a copy of the letter below in image format, but ran it through the OCR machine so that it could be published as text.  If there are still OCR errors remaining, please let us know.  We think that the concepts in this letter are ones that people should know.  Note that the graphic is not from the ACLU.]

AMERICAN CIVIL LIBERTIES UNION of SOUTHERN CALIFORNIA

Via Electronic Mail and U.S. Mail

October 17,2014

Miguel Pulido, Mayor
Sal Tinajero, Mayor Pro Tem
Vicent Sarmiento, Council member
Michelle Martinez, Council member
Angelica Amezcua, Council member
David Benavidez, Council member
Roman Reyna, Council member

CITY OF SANTA ANA
20 Civic Center Plaza
P.O. Box 1988, M31
Santa Ana, CA 92701

RE: Free Speech Rights at Public Meetings of the Santa Ana City Council

Dear Mayor Pulido and Council Members:

We write to express our strong concern with Santa Ana’s policy and practice of restricting speech at open and public meetings of the Santa Ana City Council. Specifically, the Council’s interpretation of Santa Ana Municipal Code Section 2-104 (as currently written) and the City’s actions at the October 7, 2014 Council meeting, constitute viewpoint discrimination in violation of the First Amendment of the United States Constitution and the Liberty Speech Clause of the California Constitution. Accordingly, we urge you to: 1) immediately issue a public statement where you affirm the right of the public to openly criticize and/or express views contrary to those of the councilor others; 2) provide training to the Council, its staff, and its police department to ensure that the public’s free speech rights to attend and participate in Santa Ana City Council meetings are not unlawfully restricted or further chilled; and, 3) carefully review any proposed revisions or amendments to the Council’s rules of decorum to ensure that they pass constitutional muster.

Nowhere is the fundamental right to free speech and expression more vital than when addressing public officials regarding issues of public concern. In fact, “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city.” White v. City of Norwalk, 900 F.2d 1421, 1425 (1990) (emphasis added); see also Terminiello v. City of Chicago, 337 U.S. 1,4 (1949) (“[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.”). In recognition of these interests, the California legislature enacted California’s Open Meetings Law (“The Brown Act”). See CAL. GOV. CODE §§54950 et seq. The Brown Act states that legislative bodies in the State “exist to aid in the conduct of the people’s business.” ld.

The purpose of a city council meeting is twofold. First, it provides a space for members of the public to comment, recognizing that residents have an “interest in directing speech about public issues to those who govern their city.” White, 900 F.2d at 1425. Second, it promotes transparency in government while recognizing that the council has an interest in “accomplishing its business in a reasonably efficient manner.” ld. That being said, any restrictions the government imposes on speech at open and public meetings must be viewpoint neutral and reasonable in light of the purpose of the forum. Norse v. City of Santa Cruz, 629 F.3d 966, 980 (9th Cir. 2010); Kindt v. Santa Monica Rent Control Ed., 67 F.3d 266,270-71. A viewpoint neutral restriction must apply uniformly to all speech, meaning a speaker may not be prohibited or censored from speaking simply “because the moderator disagrees with the viewpoint [the speaker] is expressing,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 60-61 (1983).

It is clear from the City’s officials’ prior conduct that Santa Ana’s City Council interprets and applies Section 2-104 in a viewpoint discriminatory manner. During the City council meeting on September 2, 2014, Mayor Pulido recognized Santa Ana police officers for years of service in the city, praising their work and allowing for audience members to clap and show their support for the officers, but asked to have signs removed that members of the public seated in the audience were holding that had messages criticizing police officers. The Mayor said he found the messages on the signs “offensive” and “inappropriate” and Councilwoman Martinez also suggested that such signs were “disrespectful” and thereby not welcomed in the Council chambers.

Then, on October 7, 2014 the City prevented countless individuals from expressing their views, opinions, and comments on various matters of public concern within the City’s jurisdiction, including a proposed revision to the Rules of Decorum, when the Mayor cancelled the meeting without rescheduling it because someone in the audience was wearing a hat that the Mayor found to be “offensive.” We understand that Mr. Bijan, a member of the public, went to the City Council meeting on October 7, 2014 to talk to the Council about the police abuse that he had experienced at the hands of Santa Ana police offices. We further understand that Mr. Bijan wore a hat that read “Fuck the Police” as an expression of his belief that Santa Ana police were abusive and oppressive and should not be commended as they were at the prior City council meeting. Before the meeting was even called to order, however, Mayor Pulido announced to the public that police were going to clear the room to deal with the fact that Mr. Bijan refused to remove his hat. The Mayor subsequently cancelled the meeting without rescheduling it, and other council members and the police chief supported his decision.[1]  By allowing praise and the honoring of police officers while prohibiting criticism of the police officers, the City clearly engaged in viewpoint discrimination in violation of both the federal and State constitutions.

[1] See “When man wearing anti-police hat won’t leave, Santa Ana cancels council meeting“, OC Register, Oct. 8, 2014 (“Why don’t you just be respectful and take off your hat and we can resume the meeting. That’s all we’re asking,” [Council member] Martinez said. “It’s disrespectful to the chambers. It’s disrespectful to our police officers.”); see also “Santa Ana defends canceling council meeting over hat flap; law dean say mayor ‘clearly overreacted.”’, DC Register, Oct. 8,2014 (“We want everybody to leave so we could restore order,” [Police Chief] Rojas said. “If the mayor doesn’t want somebody with that offensive language in the meeting, it disrupts the meeting.”)

The Mayor and Council’s interpretation of the rules of decorum is not reasonable in light of the purpose of the City Council meeting and the actions of Mr. Bijan. A restriction can be reasonable if it restricts conduct that causes an actual disruption, but Mr. Bijan’s conduct did not cause any actual disruptions that impeded the natural progression of the meeting. In McMahon v. Albany Unified School Dist., 104 Cal. App. 4th 1275 (2002), Mr. McMahon expressed his discontent and criticism with the amount of litter in and around school grounds by dumping trash on the floor of a school room. Id. at 1281. Mr. McMahon was arrested for willfully disrupting the school board meeting. Id. The Court found the School Board’s prohibition against dumping trash on the floor of a school room reasonable because Mr. McMahon’s activity itself, and not the content of his expression, was being regulated. Moreover, the Court found that Mr. McMahon acted in a way that substantially impaired the effective conduct of the meeting.

In contrast, here Mr. Bijan was quietly sitting in the council chambers, preparing his comments for the public comment portion of the meeting, when he was approached by city officials and ordered to either take off his hat or leave the chambers. But, the City cannot banish Mr. Bijan from the council chambers or otherwise punish him for a “silent, passive expression of opinion, unaccompanied by any disorder or disturbance.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508. Mr. Bijan was not acting in a way that impeded the progression of the meeting and the city officials’ request that he remove his hat or leave was viewpoint discriminatory, unreasonable and, therefore, unconstitutional.

Moreover, the fact that Mr. Bijan’s hat read “Fuck the Police” does not constitute an actual disruption of the meeting simply because some may have been offended by the words used or found the message to be disrespectful. The City cannot require that public speakers or members of the public who attend council meetings be courteous, respectful, polite, and refrain from using accusatory, inflammatory, offensive, or insulting language. Such restrictions are contrary to well-settled law that “governrnent officials in America occasionally must tolerate offensive or irritating speech.” Norse v. City of Santa Cruz, 629 F.3d 966,979 (9th Cir. 2010) (Kozinski, J., concurring) (citing Cohen v. California, 403 U.S. 15,26 (1971) (reversing the conviction of a man who wore a jacket that said “Fuck the Draft” to a courthouse, stating that one of the “prerogatives of American citizenship is the right to criticize public men and measures and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation”); see also New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing that political speech “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”). In other words, the City “cannot define actual disturbance in any way it chooses.” Acosta v. City of Costa Mesa, 718 F.3d 800, 829(9th Cir. Cal.2013). Indeed, the Mayor and the Council do not have the ability to define disruption to mean, simply, the presence of speech they find “offensive.” “Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption.” Norse v. City of Santa Cruz, 629 F.3d at 976.

In fact, it was the Mayor’s conduct that caused an actual disruption to the orderly conduct of the meeting by first, delaying the meeting by having police clear the room, and then by ultimately cancelling the meeting. Therefore, City officials, including the Mayor, violated Santa Ana Municipal Code Section 2-104 (“No person shall violate the order and decorum of a council meeting, speak without permission, or do anything which may interfere with the effective deliberation of the council. Any violation of this provision is declared to be a misdemeanor and any person violating the same may be prosecuted ….”).

For the foregoing reasons we strongly urge you to:

(1) Issue a public statement affirming the right of the public to openly criticize or express views contrary to those of the councilor others at city council meetings, including speech, whether spoken or printed that could be deemed offensive or disrespectful;

(2) Provide training to the Council, its staff, and its police department to ensure that the public’s right to participate in Santa Ana City Council meetings is not restricted or otherwise chilled and provide additional instruction on California Government Code §54954.3(c) (“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”) and other relevant provisions of the Brown Act; and

(3) Carefully review any proposed revisions or amendments to the current ordinances to ensure that Santa Ana’s rules of decorum are facially constitutional and do not lead to or further chill the free speech rights of members of the public.

We understand that the City’S next council meeting is scheduled for Tuesday, October 21, 2014. Therefore, the City should take immediate steps to resolve the issues discussed in this letter, precluding the need for further action such as litigation. If you have any question or concerns, please do not hesitate to contact me at (714) 450-3962, ext. 102.

Belinda Escobosa Helzer
Director of the Orange County and Inland Empire Offices

cc: Carlos Rojas, Chief of Police, Santa Ana Police Depar
David Cavazos, City Manager, City of Santa Ana

STAND FOR JUSTICE