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Nudity and mask-wearing ban proposal: ACLU says decorum rules go too far

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The February arrest of Seth Brigham, who stripped to his boxers at a Boulder city council meeting in reference to a possible nudity ban, has led to proposed rules of decorum that prohibit disrobing and more. To Judd Golden of Boulder's ACLU branch, the prospective regs represent an "unnecessary overreaction to an isolated incident."

The most potentially divisive portion of the proposed decorum guidelines put forward by council members George Karakehian and Lisa Morzel reads:

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.

That's quite a laundry list, and Golden, who's written a letter to council laying out his argument against the changes (see it below), is troubled by many of the items on it. Take the restriction involving face covering. "There's a big, international controversy about women who wear veils, and I guess Boulder's going to take a stand on that," he allows. "I don't think that's what they intended, but that's the way it's written."

Beyond that, he feels the rules are a solution in search of an ongoing problem. He notes that "I and others from the ACLU have taken part in public participation at city council meetings for many years, and there have been a wide range of people who've shown up: some who've made pertinent comments, others who've made impertinent comments, and still others who've had very little to say but got up and talked anyway.

"But this is all about one incident, and all you have to do is watch the video of it and you can see that it was an over-response to this guy Seth Brigham trying to make a point by stripping to his boxer shorts. And they've reacted to it by drafting these rules, which include so many terms that are so general that it allows for very arbitrary enforcement."

Not that Golden objects to the council establishing such rules. "It's a formal body, and they're elected officials -- and when citizens approach to address them, it's very fair to expect them to respect the body they're addressing and have some reasonable decorum while doing that. But many of these terms could be used to focus on the content of what people are saying, and that's the main mischief here.

"I'm sure the council will say, 'Oh, don't worry. We're good guys. We won't enforce the rules in an unreasonable way' -- and maybe this body won't. But what about the next one? This is a fluid body, and the rules, if enacted, could very well be there ten years from now, when the body is very different."

Since Golden sent out his letter, he says he's heard from a council member he doesn't identify who isn't enthusiastic about the guidelines, either. This response gives him hope that the council as a whole will back away from the additional limitations.

"It's okay to have reasonable time, place and manner restrictions," he says. "But not these."

Page down to read Golden's letter to the city council:

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

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