Is it ok to use police to remove commenters from public meetings?
As school board members and residents continue to argue about the future of Lincoln Memorial Academy charter school, a new argument has surfaced.
Where is the line between maintaining order and muzzling citizens at school board meetings?
Chairman Dave Miner has used police to eject crowd members — all Lincoln supporters — at least four times over a period of three weeks. Each time, he cited conversations or outbursts taking place in the crowd, or public comments he deemed “out of order.”
The Bradenton Herald contacted more than a dozen First Amendment experts for insight on the rights afforded to board members and citizens. Of the four who responded, each took issues with a specific line in the board’s public comment guidelines.
“Public comment is not a forum to attack individual school system employees or board members,” the guidelines state.
The word “attack” is vague and open for interpretation, and such policies are sometimes used — purposely or inadvertently — to silence criticism. A board should only remove speakers who pose an “imminent threat to others,” or those who disrupt meetings “in violation of criminal law,” said Norm Kent, an attorney with the Defense Law Center of South Florida.
“The proposed wording is a veiled attempt to inhibit the public’s freedom of expression and needs to be more broadly worded to protect free debate as well as individual decorum,” Kent said in an emailed response.
The school board added a last-minute item to its July 23 agenda, and it soon voted 4-1 to assume control of Lincoln, citing concerns with its finances and leadership. Board members often faced heckling and protests from the crowd, which expressed overwhelming support for the existing school.
One week later, the board held a special meeting to discuss and approve its tentative 2019-2020 budget. Miner warned guests to focus on the budget, the only item on their agenda
Vice-Chair Gina Messenger backed the chairman’s message, urging the crowd of Lincoln supporters to share other comments at the next board meeting.
“Any protest or attempt, you’ll be asked to sit down and restrain yourself from that,” Miner said. “If that request is not followed, I will be asking for you to be escorted out of this room. Let me make it very clear, this will be a business meeting of the school board.”
Rodney Jones, the ousted leader of Manatee County’s NAACP and the center of recent school board controversies, was the third person to speak on July 30. He followed Lincoln’s former principal, Eddie Hundley, who was told not to speak about Lincoln during public comment.
“Y’all are treading a fine line on abridging people’s First Amendment freedom of speech,” Jones said. “I caution you,” he continued, as Messenger interjected.
“I would recommend we talk about the budget,” she said.
“Coming up here and making threats, you’re going to be asked to leave,” Miner followed.
Jones again complained about the restraints, and Miner then called for police to escort him from the podium. Within 10 seconds, Jones had two officers on either side of him.
He left at the urging of community members, and Miner called for a recess.
The definition of a “threat” is subjective, and it seems the rule is sporadically used from one meeting to another. Jones was previously allowed to finish comments that could be perceived as a threat.
“I don’t care how you like it, and if you need to talk to me about it I can wait for you outside,” he said on July 23, addressing board member James Golden.
“It’s going to come back to get you, we assure you, either one way or another,” Jones said on Aug. 13, speaking to Miner.
Kent, a member of the First Amendment Lawyers Association, reviewed the public comment guidelines and proposed an update.
“While the public comments forum should not be utilized to attack a school board member individually or personally, anyone can attack and challenge, or call to question, that person’s positions, policies, presentations, or professionalism,” he wrote.
Responding to the Bradenton Herald’s inquiry, three others reviewed the guidelines and shared similar concerns. Jasmine McNealy is an assistant professor at the University of Florida, and she studies “information, communication, and technology,” according to her profile on the university’s website.
“The guidelines provide no guidance about what is considered an attack, and has potential of being a way to restrict public comment, and could possibly result in a speaker being removed,” McNealy said in a written response.
Manatee’s public comment guidelines could be viewed as a “prior restraint,” the suppression of comments that have yet to be shared, according to Luke Lirot, a Florida attorney and another member of the First Amendment Lawyers Association.
Lirot shared a letter he drafted for one of his clients, who apparently faced trouble at Hillsborough County School Board meetings for his “enthusiastic presentations.”
“While I understand there is a need for maintaining order and proper decorum in School Board meetings, I would respectfully submit that protected ‘political speech’ often includes sharp criticism,” the letter states.
Order or obstruction?
School boards have a need to maintain order and conduct business, but the terms are often subjective.
Under state law, citizens should have “a reasonable opportunity to be heard on a proposition,” and the board has a right to maintain “orderly conduct or proper decorum.”
If a government leader feels their definition of “orderly conduct” was breached, police officers are sometimes forced into “spur-of-the-moment judgment calls,” according to research by Frank LoMonte, executive director of the Joseph L. Brechner Center for Freedom of Information, at the University of Florida.
“I think it’s safe to use the police to enforce limits only if the speaker is truly disruptive and not just mildly disobedient,” LoMonte said in a written statement to the Bradenton Herald.
“If you’re shouting and swearing in a way that makes people fearful, or if you refuse to surrender the microphone after being warned, then a police response might be warranted, but it would have to be pretty extreme misbehavior,” he continued.
Tensions hit a boiling point in Manatee County on July 23, when school board members added the takeover of Lincoln to their agenda, and residents protested from their seats. As board member Scott Hopes read a six-part motion, someone from the crowd stood up and called for a “point of order.”
Miner told the man he would soon be ejected for interrupting the meeting, causing a stir among visitors. Board member Golden then seconded Hopes’ motion, as another person yelled out from the crowd: “We’ll show you the power of the people.”
“I’m sorry, we’re not going to tolerate this,” Miner said.
“What are you going to do?” Jones responded, taunting the chairman.
Golden, the only black member on Manatee’s school board, began to address the crowd of Lincoln supporters, including those who questioned his integrity and his loyalty to the black community. He pleaded with guests to allow for an orderly process, but the crowd continued its sidebar conversations and interjections.
As chairman Miner began to call for backup, Golden halted the incoming police officers and made an unsuccessful motion to stop ejections during the meeting, despite the sharp criticism.
“We’re going to sit in here and we’re going to solve this,” Golden said. “We’re not going to continue to insult each other and belittle each other.”
Still, the unrest continued. Much of the crowd shared the same frustration as Messenger and board member Charlie Kennedy, who called for more discussion on the lengthy, last-minute motion to terminate Lincoln’s charter.
Throughout the five-hour meeting, crowd members grew frustrated as Miner continually denied or ignored Kennedy’s requests to speak. When given the chance, Kennedy took a moment to empathize with the audience.
“This is an emotional topic, it’s an emotional night, but you have to let us have this discussion up here,” he said. “We don’t need to throw anybody out, but we do have the overflow room upstairs.”
Hundley, the school’s former principal, eventually asked to speak on the pending charter termination, but the chairman quickly told him to sit down.
“Since it was added last minute, if I could have an opportunity to speak, because you couldn’t sign up for public comment,” he said at the meeting. “You added this at the last minute to the agenda. I’ve been quiet all evening.”
The board went on to pass Hopes’ motion and take control of Lincoln’s operations. The district superintendent then presented three candidates for an interim principal, and the public outcry grew more as each name was read.
Jones asked questions from the audience — the last straw for Miner. The chairman directed his own question at the board attorney, Stephen Dye, questioning whether the board could eject people who spoke out from the audience.
“Absolutely,” Dye said.
“And that’s what we’re going to do,” Miner responded. “Mr. Jones, you’re No. 1. You either leave or you’re going to be escorted out. If you resist, you’re under arrest.”
As three police officers approached Jones, crowd members stood up in protest, linking arms and blocking the exit door. “No justice, no peace,” they chanted.
“Could you please reconsider?” Kennedy said, addressing the board chair. “You’re just throwing gasoline on a fire.”
“We’re not getting anything done,” Miner responded, vowing to “get reinforcements” and then adjourning the meeting for 10 minutes.
Three weeks later, at the meeting on Aug. 13, Miner again used police officers to escort people from the board room. Golden was defending his support for the changes at Lincoln, directly addressing the audience, and people again yelled out from the crowd.
One man stood up in protest, vowing to leave the room after expressing his opinion.
“You’re allowing him to address the audience,” the crowd member said.
“He is a board member, and you are allowed to leave right now,” the chairman responded, then asking police to escort the man out.
“If you tell them to escort me, I’m going to sit back down and make them escort me out,” the man responded. “That’s what’s going to happen. I told you I was getting ready to leave.”
Amid similar conversations about public comment In Sarasota County, board attorney Art Hardy warned school board members about having a conversation with the audience.
“I would caution the Board against directly engaging with individuals in the audience,” he wrote in a July 31 memo. “This can reasonably be expected to prompt that individual to respond.”
At the recent meeting in Manatee County, less than four minutes after the first man was ejected, Miner called for a second police escort after he overheard two women conversing near the back row.
“We’re not doing anything,” one of the women said.
“That’s not my decision,” the officer responded.
“Ladies, if you don’t leave, you’re going to be arrested,” Miner followed, shocking several members of the audience.
Maintaining Order, and the No-Name Game
Courts vary when ruling on “disruptive” conduct, and whether school boards were right to bar a comment or expel someone from a meeting, but restrictions on speech are always open for a constitutional challenge.
LoMonte recently joined Clay Calvert, director of the Marion B. Brechner First Amendment Project, in publishing a research paper called “The Open Mic unplugged: Challenges to Viewpoint-Based Constraints on Public-Comment Periods.”
“Locally elected officials regularly trespass into constitutionally protected territory in the name of maintaining decorum and civility at government meetings,” it states.
Maintaining order is a justifiable government interest that might warrant someone’s removal, but much like a policy against “personal attacks,” vague terms — such as “order” or “decorum” — can be abused, according to the report.
And even if a board takes legal action, an “unwillingness to tolerate disagreeable but harmless speech can itself disrupt a public meeting far more than the speech itself could have,” the report states.
It also questions the same type of policy or tradition used in Manatee County, which prevents someone from naming an employee during their remarks.
“While it is arguably unfair for a speaker to have a platform to berate a low-level employee who is not present at the meeting to defend herself, the school board members are present and have microphones of their own,” it states. “Any policy that insulates elected officials from criticism is doubtfully constitutional.”
Jones, the former NAACP president, complained about a district administrator during public comment on Aug. 13, prompting board member Kennedy to interject.
“Generally speaking, you can’t call out employees,” he said. “You can call us out all you want.”
“No, you can’t do that, either,” Miner followed.
Jones then called out Superintendent Cynthia Saunders, and Miner immediately interrupted, calling his statement “out of order.” Vice-Chair Messenger seemed to agree, noting that Saunders was “also an employee.”
Board attorney James Dye usually remains on standby until someone asks a question, but the conversation pushed him to set the record straight.
“If Mr. Jones has a comment about a person’s job performance, that’s fair game,” he concluded. “If it’s something personal, then I think that’s off the table.”