FIRE -The Foundation for Individual Rights and Expression- is demanding that the Edison Board of Education revamp its public participation policy after a resident was removed from a May meeting for using profanity and refusing to provide his address.
The six page letter, sent on July, 15th, argues that policy 0167 and the Board’s response to the speaker violated the First Amendment.
According to FIRE’s letter and the Board’s meeting video, the confrontation occurred during public comment at the May 19 meeting, during which the Board president instructed a speaker to state his name and address. The speaker initially responded, “For a Good Time at 9 Finch Court” then objected to the requirement, stating, “I don’t have to tell you shit.”
A Board official told him to watch his language and the Board president directed security to remove him “for using the bad words” and indicated that the speaker forfeited his time.
In response, the speaker argued that he still had more than four and a half minutes left, to which the president responded, “I control this meeting. Your time is up.” before the speaker was removed from the meeting.
Policy 0167 gives members of the public six minutes to speak but provides the presiding officer with broad authority to interrupt, warn or terminate comments considered “too lengthy,” “abusive,” “obscene” or potentially defamatory.
The policy also allows the presiding officer to request assistance from law enforcement, adjourn the meeting, take other action permitted by law or waive the rules when considered necessary to protect privacy or maintain an orderly meeting.
“The board’s policy and behavior are at odds with the Constitution,” FIRE Program Counsel Brennen VanderVeen said. “The right to redress the government belongs to all Americans, not just those who the board president finds sufficiently respectful or decorous.”
The organization argues that terms such as “abusive,” “reasonable decorum” and “too lengthy” are vague and leave speakers without a clear understanding of what is prohibited. They also argue that the policy creates too much room for arbitrary or view-point based enforcement due to the discretion it gives to the presiding officer.
The presiding officer may “interrupt and/or warn a participant when the statement, question, or inquiry is abusive, obscene, or may be defamatory” and “request any person to leave the meeting when that person does not observe reasonable decorum.”— Edison Board of Education Policy 0167
“Policy 0167 unconstitutionally grants the presiding officer extraordinary authority over public comments and empowers him to censor protected speech.”— Foundation for Individual Rights and Expression
While Government bodies can place reasonable limits on public comment, including time restrictions and rules addressing genuinely disruptive conduct, FIRE’s position is that Edison’s policy goes further by allowing officials to suppress protected speech based on subjective judgments about tone, language and decorum.
“Giving offense is a viewpoint” protected by the First Amendment, FIRE wrote, citing a 2017 United States Supreme Court decision.
FIRE also pointed to concerns about speakers being directed to announce their home addresses citing a a federal court decision involving a Pennsylvania school board in which a judge preliminarily blocked enforcement of a similar policy. The court found that publicly announcing a specific home address could discourage people from speaking about controversial issues.
Edison’s policy requires a speaker to provide a name, municipality of residence and group affiliation, if applicable, but doesn’t require a street address.
FIRE reserved judgment on whether Edison may require speakers to disclose their names and municipalities but said the Board should stop requiring the public disclosure of street addresses.
The letter also challenges the decision to remove the speaker for using profanity arguing that there is no general profanity exception to the First Amendment and that Edison’s written policy doesn’t expressly prohibit profanity.
The organization acknowledged that the Board may remove speakers who genuinely disrupt a meeting, make true threats or continue speaking after their time expires. It argues, however, that offensive or provocative language can’t automatically be treated as disruption.
“Actual disruption means actual disruption,” FIRE wrote, quoting a federal court decision. “It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption.”
According to FIRE, the speaker was removed because of his words rather than conduct that prevented the meeting from continuing.
“That is unconstitutional censorship of speech, not prevention of actual disruption,” the organization wrote.
FIRE is asking the Board to amend Policy 0167 and refrain from removing speakers merely for using profanity or other provocative language that does not actually disrupt the proceedings.
The Board has until July 30 to provide the response requested by the organization.
Letter From Fire to the Edison BOE
Video Clip:
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