25
Sat, May

Open Letter to SM City Council Re. Censoring of Public Comments

GUEST COMMENTARY - Update to Civility Policy unconstitutional, writes resident.

Dear Mayor Davis, Councilmembers and City Attorney Sloan,

The purpose of this Open letter is to express grave concerns regarding the constitutionality of item 5-K agendized for the upcoming September 26, 2023 City Council meeting. 

The name of the item is "Adoption of a Resolution Amending and Restating the Civility at Public Meetings Policy set forth in Resolution No. 10642 (CCS)." The item seeks the addition of the City's Statement Against Hate to the existing civility policy. The Statement was originally adopted in July 2022, and was recently added to the City's Code of Ethics.

It is my belief that this item seeks to legitimize censorship at public meetings under the guise of a civility policy.

The City's Statement Against Hate reads in part:

"Equity and inclusion remain at the core of Santa Monica's values, and the City will not allow abusive or threatening hate speech, intolerance, or dehumanization to prevail over basic civil respect and human decency. (...) Be it Further Resolved, that the City Council, all City Boards and Commissions, and City staff shall promote the use of and adherence to these guidelines for behavior at all public meetings within the City [emphasis added]."

In contrast, the American Civil Liberties Union's website reads in part:

"Since its founding in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. Where racist, misogynist, homophobic, and transphobic speech is concerned, the ACLU believes that more speech - not less - is the answer most consistent with our constitutional values."

Additionally, "Freedom of Expression – ACLU Position Paper" offers a powerful quote:

As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

It is in the public interest to ensure that the approval of item 5-K by the Council will not result in a violation of the First Amendment of the US Constitution, the California Constitution, the Brown Act, or any other applicable law. Therefore I request that prior to the Council's vote on the item, the City Attorney respond at the 9/26/23 Council meeting to the concerns raised by this letter.

The First Amendment of the U.S. Constitution provides protection to and opportunity for free speech in public forums. The public meeting of a board or council is considered a "limited public forum," which means the government can regulate the time, place, and manner of speech.

To my knowledge, ample case law exists pertaining to civility policies at public meetings. Courts have concluded such policies must be viewpoint neutral, may not be unconstitutionally vague, ambiguous or overbroad, and may not create a chilling effect on the public. 

Here the Council seeks the inclusion of the City's Statement Against Hate in the civility policy for public meetings. The Statement deplores "hate speech." As you must know, no legal definition of "hate speech" exists. It is unclear what kind of language and/or viewpoints the Council is seeking to discourage. What might be considered "hate speech" can vary from speaker to speaker and listener to listener. Such ambiguity alone creates a chilling effect on the speakers.

Sadly, the intent to create a chilling effect (which is a form of censorship) was actually articulated by one of the sponsors of the City's Statement Against Hate, then-Councilmember, now Mayor, Gleam Davis in July 2022.

Said Ms. Davis:

"My hope is that by adopting this, many people will think twice before some of the hateful things that have been said, posted, you know, on social media, and, you know... I don't know... No one is trying to curtail speech, and no one is trying to reduce First Amendment rights, but I do think... I would hope that in a community like Santa Monica, we are... people would think twice before posting things that are... I don't know any other word for it but, just horrific, the things I have seen. So this is just a reminder to people that good policy is made when we have civil discussions [emphasis added]."

Such clearly articulated intent to create a chilling effect cannot be mistaken to understand the addition of the Statement Against Hate to the civility policy as merely "aspirational government speech." 

It is shocking that the intent to curtail free speech was publicly communicated from the dais by then-Councilmember, now Mayor Davis, who is an attorney and often claims to be a champion of the First Amendment. 

Please note that local governments and their officials, employees, places and means of communication are subject to First Amendment principles, and risk-wise, are subject to civil rights liability, including the potential for individual liability per 42 U.S.C. § 1983.

I urge Mayor Davis and the Council to do their due diligence to ensure the constitutionality and otherwise legality of item 5-K, and to appraise the public of their findings at the Council meeting on Tuesday September 26, 2023 prior to voting on the item.

Censorship has no place in Santa Monica.

Regards,

Olga Zurawska, Santa Monica resident and member of The First Amendment Coalition.