1st Amendment Quandary: Can Citizens Direct Their Anger to Staff in Addition to Elected Officials?

At a recent San Diego Association of Governments meeting last month, board Vice Chairman Sean Elo-Rivera became angered over a number of public speakers questioning information in a report exploring the removal of tolls on State Route 125.

The report — “Process for removing toll roads on State Route 125” — was prompted, in part, by recent revelations that drivers were incorrectly charged for using the 10-mile long toll road. It was authored by four SANDAG staff members who had evaluated several options for the future of San Diego’s only toll road.

Elo-Rivera halted the May 24 board meeting following questions by several speakers. He had warned several of them, both in person and on the phone, not to direct their questions to the staff members.

A number of those addressing the board complained about not being able to understand the terminology used and questioned the process for developing the report. Some used unflattering terms to describe the report’s language.

Elo-Rivera, who is also president of the San Diego City Council, responded by saying, “I’m done with folks talking to staff.” He issued a challenge: “Test me on this, okay? So there’s elected board members here, we ran for office. We will deal with what you all have to say.”

He also warned them that “the next time somebody directs comments to staff they will be removed.”

Times of San Diego asked San Diego City Attorney Mara Elliott about Elo-Rivera’s effort to curtail some of the public comments. She directed us to SANDAG’s general counsel, John Kirk, who advises the board members on legal issues.

Ironically, two days following the SANGAG meeting, her office released a report for city officials titled “Threats to Elected Officials: What Can Be Done, First Amendment Overview.”

There have been a number of times when disruptive behavior or insulting, demeaning language has had a negative impact on meetings across the state, including in San Diego. Elliott’s report detailed recent changes to the state’s open meetings law, the Brown Act, that relate to disruptive behavior during public hearings.

The changes, the report said, give “legislative bodies authority to remove individuals who disrupt a meeting.” However, the behavior must be something that “actually disrupts, disturbs, impedes” the meeting.

A review of the webcast of the SANDAG meeting seems to indicate no disruptions.

Kirk’s office has yet to respond to questions about the public hearing, although his office previously said it was working on a statement.

David Loy of the First Amendment Coalition offered his take on the Elo-Rivera’s actions at the SANDAG meeting:

“The First Amendment guarantees people the right to criticize their government, and, by extension, to criticize the people who work for the government,” Loy said. “That criticism may or may not be justified.”

As to the threat to remove the speaker, Loy said, “That’s a significant First Amendment problem as long as people are within their time limit. And they’re addressing a specific agenda item or the general work of the agency. They have the right to their point of view, whether one agrees or disagrees, whether one likes it or does not like it. People have the right to criticize the work of the agency and of the agency staff.”

Elo-Rivera’s office resonded by saying staff members “were called out by name and seemed intimidated and threatend by an aggressive public commenter” who sat nearby. He also said he would “continue to be a champion of First Amendment free speech rights.”

“I also wholeheartedly believe public servants deserve to feel safe,” Elo-Rivera added.

Loy offered some perspective on Elo-Rivera’s concerns about aggressive behavior.

“In this context, if aggressive means criticism, strong criticism of your conduct that is what the First Amendment is designed to protect,” Loy said. “I understand the concerns. But the First Amendment does not have any exceptions for people not liking what is being said.

“And if someone giving public comment is genuinely making true threats, that causes someone to fear for their physical safety, that’s unprotected speech, and they can be removed. But criticism is not a true threat. And it is not an excuse to violate the First Amendment to say your criticism doesn’t make me feel safe. I’m sorry. That’s just not the law.”

A final note on the meeting, before the last two speakers were to be called at the May 24 hearing, Elo-Rivera again stopped the proceedings, asking, “Can we clear the room please?” because he wanted a five-minute recess. When the meeting reconvened, Elo-Rivera announced the staff members who wrote the toll road report were no longer present.

“They’re just not in the room,” he said. “They’re available remotely.”