Dear City Manager, Mayor, and Members of the Pleasanton City Council,
I'm writing to you all with regards to the topics discussed at the May 23rd Pleasanton City Council "Workshop" meeting.
I don't want to reiterate the views that I share with others regarding the disturbing lack of public notice and the lack of a recording and public posting of video from the recent May 23rd meeting -- that's been done in other venues, and I'm sure you are by now all well aware of them. I am writing, though, to ask that you all make an effort to more rigorously reacquaint yourselves with the First Amendment of the United States Constitution, and with what is considered protected free speech. That includes, without question, policy debates, policy discussions, and policy disagreements by members of a City Council -- regardless of the opinions of the majority, or the outcome of votes of the body. Any attempt to try and proscribe public statements, or posts on social media, that include proscribing policy-related speech by a sitting member of the City Council, would be unenforceable on constitutional grounds.
Likewise, the sitting Mayor of Pleasanton shouldn't have the need to seek legal advice from the City Attorney regarding whether a member of the media or a member of the general public has the right to record the audio (or video) of an open City Council meeting DURING said meeting. However, I'm told that this in fact occurred at the May 23rd meeting, and that's incredibly disturbing to learn -- especially in light of the lack of notice, broadcasting, or public dissemination of the audio or video recordings of this particular meeting by the Council. Such recording activity is always allowed by members of the media and general public. The fact that the Mayor, who has served as Mayor and as a Councilmember for a good number of years now, felt the need to ask this question is not only embarrassing for the City, it's alarming. The right of the public, and especially of the media, to record public meetings is already made clear in the City of Pleasanton's existing policies and procedures, and is clearly protected activity under the United States Constitution.
Finally, creating policies proscribing the ability of a member of the Council to post, or say, whatever they would like -- either before or after a meeting -- on social media or in the press with regards to a policy debate, discussion, or disagreement is patently unconstitutional. In fact, whether or not a Council can proscribe any speech or posts by a sitting member outside of Council meetings (except, of course, for privileged information) is a topic that is up for debate.
The City of Ann Arbor recently created City Council rules seeking to prevent members of the Council from "making defamatory statements about other council members -- like implying that colleagues took bribes simply because they voted differently on an issue." There's reasonable arguments to be made that something like that might be able to be proscribed by City Council rules -- but even then, as the ACLU pointed out, the sort of rule required to proscribe that sort of speech probably violates the First Amendment of the United States Constitution for a host of reasons. At the top of the list of reasons is the fact that, as was pointed out by Councilmember Balch in the meeting on May 23rd, any such rules would usually have to rely on overly broad policies that could have so many potential meanings and applications, that the rule would be vulnerable to being "void for vagueness" -- which is a First Amendment test put in place by the United State Supreme Court in prior rulings where municipal governments were attempting to proscribe free speech.
Putting the discussion of "defamatory statements" aside, what is clear from the Ann Arbor example is that those members who voted in favor of the rule against defamatory statements, were also well aware of the constraints the First Amendment places on what can be covered as "proscribed speech." Speech covering policy debates, policy disagreements, and policy discussions were acknowledged by those Councilmembers that supported the Council rules, and by the City Attorney of Ann Arbor, as the type of speech that can never be proscribed by a Council majority. Nor can pointing out why one member disagreed with how another member voted, nor can disagreeing with the reasoning that another member stated about why they voted a certain way. Posting on social media a statement like: "I disagree with how Mayor Brown voted on x issue, and I also don't agree with Mayor Brown's statements about why she voted that way because of x, y, and z" -- that's protected free speech. Even for Councilmemebers! Any attempt to proscribe that speech could easily be contested on First Amendment grounds, and would thus be rendered useless and unenforceable if it were to become part of a "Code of Conduct."
I've attached the ACLU's letter regarding the First Amendment issues that come up when attempting to proscribe any form of speech made by a duly-elected member of a City Council through policies voted through by a City Council majority. I sincerely hope that First Amendment considerations are more adequately addressed by the City Attorney going forward, and that any future discussions exploring the possibility of proscribing protected free speech by sitting members of the City Council take place during City Council meetings that are recorded, appropriately disseminated, and fully accessible to the citizens of Pleasanton who are not able to attend a City Council meeting in person.
Thank you for taking into account my concerns.
Sincerely,
Dean Wallace
Note: The attached image is a screenshot from the ACLU's letter regarding protected free speech and the City of Ann Arbor's proposed 2021 City Council rules. It covers the relevant case law. A complete copy of letter from the ACLU can be found here: Web Link
