When Does Civic Discourse Cross the Line to Harassment?April 7, 2021
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Public agencies must walk a careful line in trying to police expressions of public opinion, even when members of the public target officials and employees as proxies for their frustration. This article discusses how to keep civic engagement constructive while protecting officials and employees from harassment.
Disruptions at public meetings are not new. The Covid-19 pandemic has created new stressors for members of the public and new opportunities to disrupt public meetings. Local residents have increasingly targeted public officials and employees as proxies for their frustration, creating a hostile environment during remote public agency meetings and even outside officials’ homes.
The First Amendment protects most forms of speech or expression in a public forum, and cities must walk a careful line in trying to police expressions of public opinion. Most of the time, public agencies must use education and other non-legal means to encourage officials, employees, and the public to engage in constructive rather than abusive dialogue. However, there are situations that cross the line into “harassment,” for which there is a legal remedy. This article describes these “last resort” options when attempts through education and modeling good behavior have failed. Ultimately, the best long term solution to keeping civic engagement constructive is to be transparent, consistent, and open to the comments and concerns of the public.
Public Disagreement is Protected Speech
Public agencies should generally err on the side of giving latitude to members of the public wishing to participate in public meetings. Courts have found that a legislative body meeting is a limited public forum for purposes of the First Amendment. Thus, statutes regulating legislative body meetings must be implemented in a manner consistent with the First Amendment. Additionally, legislative bodies are not free to define what constitutes a “disruption;” rather, a disruption is limited to an actual disruption, not a constructive, technical, virtual, or any other kind of qualified disruption the body may think of. (See Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010)).
Under the Brown Act, legislative bodies may adopt reasonable regulations on public participation. Such regulations must be enforced fairly and cannot be based on the speaker’s viewpoint. If a particularly controversial item is on the agenda, meeting rules should be explained at the beginning of the meeting. Cities should structure meeting agendas in a manner that allows critical business to be completed, even if disruptions are expected.
If a meeting becomes unruly or difficult, a recess is often a good way to provide a short cooling off period. If order cannot be restored after a short break, the legislative body may order that the room be cleared. Even so, the body must allow members of the news media who did not participate in the disturbance to remain in the meeting room and observe the meeting. In rare cases, the Brown Act authorizes the legislative body to remove people from a meeting who willfully interrupt the proceedings. However, removing an individual from a meeting is a last resort and should only be done under extreme circumstances when an individual is clearly responsible for an indisputable disruption.
When the Public’s Behavior Crosses the Line
With much of local agencies’ business currently being conducted from officials’ homes due to the pandemic, criticism from the public has extended beyond City Hall and affects officials and employees in their personal spaces. In such circumstances, officials or employees experiencing harassment may have options for legal recourse where the speech is not protected by the First Amendment. On the other hand, harassment by electronic means that does not involve threats of physical harm is more likely to be protected as free speech.
Certain categories of speech are not protected by the First Amendment, including “fighting words” and “true threats.” Fighting words are words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” particularly direct personal insults in face-to-face interactions. (Chaplinksy v. New Hampshire, 315 U.S. 568, 571-72 (1942)). A true threat is a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” including intimidation with an “intent to place the victim in fear of bodily harm or death.” (Virginia v. Black, 538 U.S. 343, 359-60 (2003)). The speaker does not need to intend to carry out the threat for such statements to lack First Amendment protection. Furthermore, conduct, as opposed to speech, may be protected only if meant to express a message, that message is likely to be understood by others, and the message itself would fall within the categories of protected speech. See Spence v. Washington, 418 U.S. 405 (1974).
As a first step, an agency should consider sending a cease and desist letter to the harassing person or persons on behalf of the employee or official. In such letters, a city should list the specific instances of unwanted behavior, explain how those behaviors fall outside of the scope of the public’s legal rights, explain that legal action may be taken if the behavior persists, and include a compliance agreement for the person to sign and return.
If the cease and desist letter fails to rectify the situation, the official or employee being targeted can petition the court for a civil harassment restraining order under Code of Civil Procedure section 527.6. Alternatively, the public agency can seek a workplace violence restraining order (WVRO) on behalf of their employee(s) under the Workplace Violence Safety Act (Code of Civil Procedure § 527.8). A WVRO must be requested by an employer on behalf of an employee and the conduct at issue must reasonably be construed to have been carried out at the workplace. Since many agencies remain under work from home orders, any conduct that affects what would typically go on during work hours would reasonably be construed as carried out in the workplace, even if it affects an individual at home. Certainly any comments during public meetings, or protests outside a home during the meeting, will also be reasonably related to the workplace and subject to a WVRO.
Under both remedies, there must be an affirmative showing by clear and convincing evidence that the employee has “suffered unlawful violence or a credible threat of violence.” A credible threat of violence means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family, and where the statement or action serves no legitimate purpose. This could include following or stalking someone, making harassing calls, or sending harassing messages by phone, mail, or any form of electronic communication, over a period of time (even if it is a short time). Additionally, the court must find there is a reasonable probability of future harm.
For example, in City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, Garbett, a member of the public who frequented public city meetings, had 14 WVROs issued against him based on making credible threat of violence towards the City Clerk. In a conversation with the clerk regarding Garbett’s application to run for City Council, Garbett became agitated and at one point suggested that he would need to take action similar to an incident that transpired in Kirkland, Missouri, where an upset resident killed five people at city hall. The court noted that Garbett had a long history of hostility towards city employees which could escalate into violent conduct. Garbett claimed he had no intention of carrying out those acts, but that did not prevent his statements from being deemed a credible threat.
The restraining orders prevented Garbett from coming within 300 yards of protected employees and City Hall, except for public meetings. During public meetings, he had to use a specific entrance, was subject to search before entering, and was assigned to sit in a specific row. Furthermore, he was prohibited from filing any document with the clerk personally and must either mail or have someone else deliver the documents. Thus, even after his threat of violence, the court did not prevent Garbett from attending and participating in public meetings, highlighting the importance of continued access to public meetings despite several restraining orders against an individual.
Most speech that is likely to occur in public meetings is protected under the First Amendment. However, particularly egregious behavior can be subject to a restraining order. And even with a restraining order in place, courts are unlikely to prevent an individual from attending public meetings and engaging in civil discourse.
To learn more about how to encourage public participation while protecting public officials from harassment, contact Benjamin Gonzalez or Seph Petta.