BC Council invites trouble with expression rule

As if Bossier City hasn’t invited enough legal repercussions by its continuing refusal to follow its charter concerning a petition to vote to amend this basic law, its long-standing regulations on public discourse at City Council meetings threatens even more of these.

Required by law, the Council must allow adequate citizen input in discussion of its actions during a meeting. It began the practice of informing the public of its rights at its Aug, 18, 2020 meeting as a result of acts passed that year by the Louisiana Legislature. Previous statute noted that a “governing body may adopt reasonable rules and restrictions regarding such comment period.” This had been accomplished lastly at the Jan. 21, 2020 meeting.

However, through the Aug. 1, 2023 meeting, the announcing that had commenced nearly three years earlier included only part of that Resolution #5 of 2020, under the “Decorum” section, part of the subsection “Members of the Public Addressing the Council,” which reads:

Any Person desiring to address the Council shall first receive the permission of the Meeting Chair and will be limited to the current agenda item up for consideration. Each Add-on request, will also allow public comment prior comment prior to being added on to the current agenda. Any person wishing to speak must step up to the podium microphone and state their [sic] name and address for the record. They shall address the Council in an audible tone of voice for the record, and unless further time is granted by the Council, shall limit their address to three (3) minutes. A maximum of forty-five minutes will be set aside for addressing the Council and no more than 4 speakers per side of the argument discussion per Agenda item. All remarks shall be addressed to the Council as a body and not to any member thereof. No person, other than the Council or at Council request, City Attorney, and the person having the floor shall address the Council without the permission of the President Pro-tem. No question shall be asked a Councilperson or the Mayor except through the Meeting Chair.

Starting with the Aug. 15 meeting, Council Clerk Phyllis McGraw’s reading at the start of meetings of policy concerning comments included additional material. This is a transcription of the statement, with the post-8/1 added language in italics:

In accordance with Louisiana open meetings law and the adopted Bossier City Council meeting rules resolution, the City Council asks for order and decorum at our meetings …. Anyone wishing to address the Council on any agenda item may approach the Council and state their [sic] name and address for the record and shall be permitted three minutes to make their comments on the particular item that is up for discussion with up to four speakers per side. Any person making personal, impertinent, or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith by the president pro tem barred from further audience with the Council unless permission to continue shall be granted by a majority vote of the Council. All remarks shall be addressed to the Council as a body and not to any member thereof. No question shall be asked a council person or the mayor except through the meeting chair.

The new read statement includes material from the “By Persons” subsection, which reads:

Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council, unless permission to continue by granted by a majority vote of the Council.

Thus, the additional phrases weren’t a new development that required Council approval, but rather verbal elaboration of existing resolution. Which amplified a potentially serious legal problem with that resolution.

Undoubtedly extending the remarks came as a result of the increasingly sharp criticism that certain speakers have levied about city councilor actions, turbocharged by the controversy surrounding adoption of term limits. Some councilors, particularly Republican David Montgomery who by the tone of his voice becomes livid, seem offended when a citizen speaker challenges the notion that everything the Council has backed over the years has been hunky-dory or that ulterior motives may exist behind certain actions, such as the commission-for-petition swap in the works to try to forestall, if not prevent, the electorate voting on whether to impose a three term lifetime and retroactive limit on elected officials.

The problem is the new language is constitutionally suspect, according to Scott Sternberg of the law firm Sternberg, Naccari, and White. Sternberg is consulted and contracted widely by Louisiana media outlets concerning government regulation of information transparency and free expression.

Sternberg notes the application of the language, given its vagueness (for example, what is a “slanderous” comment) could lead to content regulation of expression, a practice clearly prohibited by First Amendment jurisprudence (“niceness” policies generally are suspect), exacerbated by the apparent ability of the Council to extend what could be lifetime bans on expression. Anything but careful usage of those rules likely would draw legal action against the city, added Sternberg, and the new language concerning banning individuals even opens to city to facial legal challenges to the new policy’s constitutionality in light of a past attorney general opinion that states a public body should exhaust other legal remedies levied against an individual before taking the drastic step preventing attendance at its meetings regardless of the justifications impeding attendance.

Statute does provide for barring from a meeting because of disruptive behavior, but this would occur on a case-by-case basis, not as a blanket ban. Given the Louisiana Constitution’s guaranteed right of direct participation in public body deliberation, this could extend to a right to address public bodies unless disqualified by a particular restricted act during discussion – allowing only for a temporary disqualification on a discrete item for violating decorum – or universally but only if other legal remedies for regulated behaviors have been implemented.

Thus, the city is vulnerable to a legal challenge merely by having the permanent ban stipulation in place, and begs for a challenge if it were to enforce its rule citing remarks “personal, impertinent, or slanderous” or “boisterous” speakers in anything more than the most delicate way. This almost goes as far as the very facially constitutionally suspect rules proposed earlier this year by the Caddo Parish Commission which not only would have banned targeted individuals from addressing the Commission, but from their attending its meetings.

The Council would be wise to revisit this issue to remove at the very least the power to ban permanently addressing it, and better still it would refine the language of what it considers impermissible expression and behavior to far greater precision.