Seth Brigham's nipple-baring appearance at a Boulder City Council meeting in February to (sort of) protest a proposed nudity ordinance that would have banned female nipples displays led to Brigham's arrest -- an action that recently cost Boulder $10,000. But did it also impact proposed new decorum rules written in the wake of Brigham's bust?
"I would hope so," responds Judd Golden of Boulder's American Civil Liberties Union branch. "I hope they realized that the legal basis under the rules was not very sound constitutionally."
The proposed decorum guidelines put forward by council members George Karakehian and Lisa Morzel this summer included passages like this one:
While in attendance at a council meeting, no attendee shall disrupt, disturb, or otherwise impedes [sic] the orderly conduct of any council meeting by any means, including by uttering loud, threatening, or abusive language, making any personal, impertinent, contemptuous, unduly repetitive, slanderous, or profane remarks, nor engaging in any other verbal or physical disorderly conduct that. [sic] Disorderly conduct includes without limitation shouting, jeering, clapping, whistling, stamping of feet, disrobing, wearing a mask or material of any kind that obscures the face of the person, boisterous conduct, or other acts which disturb, disrupt, or otherwise impede the orderly conduct of any meeting, Disorderly conduct also includes failing to obey any lawful order of the presiding officer to be seated, leave the meeting room, or refrain from addressing the council, board, or commission.
Shortly thereafter, Golden sent a letter to council -- see it in its entirety below -- arguing that the new dictates were excessive. The Boulder city attorney's office subsequently contacted Golden directly, asking for more details about his objections. Then, less than two weeks after Boulder agreed to pay $10,000 to Brigham, who was represented by prominent attorney David Lane (previous clients have included Ward Churchill, Tim Masters and Richard "Balloon Boy Dad" Heene), city attorney Tom Carr confirmed that the decorum rules had been revised.
In a memo to city council quoted by the Boulder Daily Camera, Carr wrote, "The intent of that language was to allow the mayor to bar individuals whose conduct disrupted the meeting. Included in the language were a number of examples of such conduct. When taken out of context, the examples could be construed to imply that individuals could be removed for the content of their speech. This was never the intent."
Golden, who's seen the revisions and signed off on them, is pleased by Carr's conclusions.
"The original draft said, 'You can't engage in personal attacks,' and then it changed to, 'You can't address council members of staff individually,'" he notes. "But what exactly are you trying to accomplish? If you want to individually criticize or commend a council member, what's the problem? If you're saying, 'I think this council person is wonderful and doing a great job getting the potholes fixed in my neighborhood,' should that be subject to sanction? You have to uniformly enforce rules, and to only say that negative things are proscribed doesn't make any sense."
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Golden has no problem with rules meant simply to maintain decorum at meetings, "but the devil's in the details," he points out. "And we're pleased they sought not to include those terms that I think would have given them a lot more latitude to deal with the content of people's speech -- which is what got them in trouble last time with Mr. Brigham."
Page down to see Golden's original letter criticizing the first decorum draft:
Dear City Council Members:
The Boulder County Chapter of the American Civil Liberties Union of Colorado has reviewed the proposed "Rules of Decorum" for public participation at Boulder City Council meetings which we understand will be considered on September 7.
The ACLU finds significant fault with these proposed rules. We are disappointed that the concerns we expressed in a letter to Council last March have not been heeded. These rules are an unnecessary over-reaction to an isolated incident at the February 2010 Council meeting. Public participation has worked well for many years, and surely will continue to do so without dditional restrictions on speech and conduct.
This proposal has already been pared after city attorney review, yet what remains includes many vague, overly-broad and unduly restrictive limits on free speech and conduct by the public. Examples include use of the terms, "personal" "impertinent" "contemptuous" and "boisterous," that no speech may be directed toward staff or a single council member, and a ban on obscuring the face, which would exclude women who wear a Hijab or veil for religious reasons.
As we said in March, the ability to speak before Council is crucial to the democratic process and of the utmost importance to a properly functioning government. Council is obligated to preserve, protect and extend the individual rights enshrined in the First Amendment and in Article II, Section 24 of the Colorado Constitution of citizens to, "apply to those invested with the powers of government for redress of grievances, by petition or remonstrance" during public comment periods. Any restrictions on the content of what members of the public can say during public participation should be limited to areas which are constitutionally subordinate or proscribable, and discretion should be limited, by policy.
Council's current rules for public participation are sufficient to regulate the time, place, and manner of speech by the public and to maintain reasonable decorum. These proposed Rules of Decorum go too far.
Those who choose to address Council in person should be able to, "to speak ... on any City issue" as currently stated on Council's website. The ACLU urges Council to continue this policy of unrestricted speech during public participation, and to make but one change: eliminate the prohibition against personal attacks or remarks.
The City must permit its citizens to comment on any matter of concern in an open and unrestricted manner, regardless of whether such comments are "personal" or unflattering. Provocative or controversial speech about Council, its members, staff, the City, or other matters can be addressed by responsive speech if needed, not by suppression.
Any other policy would chill protected speech and expression, and encourage prior restraint and censorship by Council. This would be at odds with the rightful expectations of Boulder citizens that its government be open and free, and that its citizens have relatively unfettered access to petition and raise concerns, in a meaningful way, in this quintessential public forum.
Thank you for considering our views. Please let us know if the ACLU can be of any assistance to Council or the City on this matter.
s/ Judd Golden Boulder County ACLU