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HomeMy WebLinkAboutLetter from citizen Gino J. Bruno re right to free speech du I GINO J. BRUNO 6571 Montoya Circle Huntington Bea , California 92647 /,brmo@ixnetcom.com April 29, 1999 Honorable Peter M. Green, Mayor City of Huntington Beach C-- 2000 Main Street Huntington Beach, CA 92648 C) Dear Mayor Green: n Regarding your attempts to censor and stifle the remarks concerning our City Treasurer made by a citizen at the City Council meeting of April 19, 1999 - 1-") v 1 was dismayed by the fact that our City Attorney took no action during the meeting to correct your attempts, and thus seek to protect our City from the potential of expensive litigation (necessitating, I am certain, outside counsel). In my view, our City Attorney had an affirmative duty to advise you that your efforts to cut off the speaker's public forum microphone and live television violated California Government Code Section 54954.3 and the holdings in Baca v. Moreno Valley Unified School District (1996) 936 F. Supp. 719. 1 have enclosed reprints of that Code Section and the Baca case for your review. Section 54954.3(c) (which is a portion of The Brown Act and which must be well known to our City Attorney) specifically provides that a legislative body shall not prohibit the type of public criticism that the citizen was exerting at the April 19"h meeting (irrespective of whether you, or anyone else, happened to disagree with that criticism). In the Baca case, the defendant School District had a policy that "No oral or written presentation in open session shall include charges or complaints against any employee of the School District. Among other things, the Federal District Court, Central District of California, held that (1) neither the United States nor the California Constitution allows government to censor statements merely because they are false and/or defamatory, (2) the California Constitution provides even broader guarantee of right of free speech than does the First Amendment of the United States Constitution, (3) Courts will not enjoin future speech save in the most exceptional and grave circumstances, such as to prohibit disclosure of military secrets during time of war, (4) school district meetings (as well as City Council Meetings, needless to say) are designated public forums created by 07-13 Honorable Peter M.Green,,.._,nor City of Huntington Beach April 29, 1999 Page 2 government designation as a place or channel of communication for use by the public at large, and (5) "alternative" channels — such as you, Mayor Green, suggested, i.e., ability to speak but without a microphone or live television — are not equivalent, since presentation would not reach the general public. As you will see from your reading of Baca, the United States District Court (1) reiterated its protection of Ms. Baca's citizens' rights of free speech and petition under both the United States and California Constitutions, (2) determined that selective enforcement of the defendant School Board's policy was a violation of Ms. Baca's right to be free of arbitrary and capricious enforcement of a government regulation, and (3) protected Ms. Baca's right to share her criticism of school administration with the Board members and concerned community members. The Court found that the free-speech concepts certainly applied to meetings which "included a public comment period during which citizens could comment on matters not necessarily included on the Board's meeting agenda." The Baca Court quoted from the California Constitution, Article I, Section 2, which provides, in relevant part: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Law may not restrain or abridge liberty or speech or press." The Court stated that the District " . . . cannot prohibit speech on the ground that it is, or may be, false or defamatory, let alone on the ground that it is negatively critical of District's employees." The Court also cited White v. City of Norwalk (1990) 900 F2d 1421, saying " . . . the city officials could not cut off speech because the moderator disagreed with the view expressed." The Court in Baca also cited New York Times Co. v. Sullivan (1964) 376 U.S. 254, quoting, "The First Amendment protects speech which is uninhibited, robust, wide-open, vehement, caustic, and sharp, as well as speech which lacks truth, social utility or popularity or which exaggerates or vilifies." Mayor Green, in my view you owe the citizen who attempted to speak at the April 191h City Council meeting, as well as all other concerned citizens of Huntington Beach, an apology. You may even want to consider apologizing to Councilman Sullivan who sought simply to prevent you from committing gross error in your attempt to cut off a public forum microphone and live television simply because you (and perhaps others) disagreed with the content or style of the citizen's presentation. But more importantly, where was our City Attorney in all of this? She should have immediately advised the City Council on the potential for legal liability (both expensive and protracted) that could result to our City from your actions. AA07-13 Honorable Peter M.Greentyor City of Huntington Beach April 29, 1999 Page 3 As I have found typical of our City Attorney in sensitive or difficult matters, or matters regarding which she has not had the opportunity to direct her staff to research beforehand (allowing her then to read from a prepared script at the Council Meetings), according to subsequent articles in the Los Angeles Times, Register and The Independent, our City Attorney was "unavailable for comment." Very truly ours, C 4 o . Bruno GJB:s Ends. cc: Dave Garafalo, Mayor Pro Tempore Dave Sullivan, City Councilman Tom Harman, City Councilman Shirley Dettloff, City Councilwoman Ralph Bauer, City Councilman Pam Julian, City Councilwoman Gail Hutton, Esq., City Attorney Shari Friedenrich, C.P.A., City Treasurer Connie Brockway, City Clerk The Independent AA07-13 CA GOVT s 54954.3 Page 1 West's Ann.Cal.Gov.Code§ 54954.3 WEST'S ANNOTATED CALIFORNIA CODES GOVERNMENT CODE TITLE 5. LOCAL AGENCIES DMSION 2. CPTIES, COUNTIES AND OTHER AGENCIES PART 1. POWERS AND DUTIES COMMON TO CITIES, COUNTIES, AND OTHER AGENCIES CHAPTER 9. MEETINGS Copr.®West Group 1999. All rights reserved. Current through End of 1997-98 Reg. Sess. and lst Ex. Sess. § 54954.3. Opportunity for public to address legislative body; adoption of regulations; public criticism of policies (a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item,that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. (b)The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. (c)The legislative body of a local agency shall not prohibit public criticism of the policies,procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law. CREDITS) 1997 Main Volume (Added by Stats.1986, c. 641, § 6. Amended by Stats.1991, c. 66 (S.B.100), § 1; Stats.1993, c. 1136 (A.B.1426), § 9, operative April 1, 1994; Stats.1993, c. 1137 (S.B.36), § 9, operative April 1, 1994; Stats.1994, c. 32(S.B.752), § 9, eff. March 30, 1994, operative April 1, 1994.) <General Materials (GM) -References, Annotations, or Tables> HISTORICAL AND STATUTORY NOTES 1997 Main Volume Section affected by two or more acts at the same session of the legislature, see Government Code§ 9605. Operative effect of Stats.1993, c. 1137 (S.B.36), see Historical and Statutory Notes under Government Code § 54952.7. Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works CA GOVT s 54954.3 page 2 Operative effect of Stats.1993, c. 1136(A.B.1426), see Historical and Statutory Notes under Government Code§ 54952.7. LAW REVIEW AND JOURNAL COND4ENTARIES Review of selected 1993 California legislation. 25 Pac.L.J. 793 (1994). LIBRARY REFERENCES 1997 Main Volume Treatises and Practice Aids Witkin, Summary(9th ed)Const Law§ 582. Witkin, Procedure (4th ed)Admin Proc§ 22. NOTES OF DECISIONS Criticism of public employees 3 2. Speech regulation, generally Speech regulation, generally 2 Subject matter jurisdiction 1 Under California statute, school board could ensure orderly discussion and exchange of information by 1. Subject matter jurisdiction regulating time, place and manner for speech at its meetings and also may require speakers to confine The legislative body of a local agency may prohibit themselves to comments within school board's members of the public, who speak during the time subject matter, and such regulation, without focusing permitted on the agenda for public expression, from on content of speech, is reasonable under free speech commenting. on matters that are not within the guarantees. Baca v. Moreno Valley Unified School subject matter jurisdiction of the legislative body. Dist., 1996, 936 F.Supp. 719. 78 Ops.Atty.Gen. 224, July 25, 1995. 3. Criticism of public employees Even assuming that citizens' statements made in open session of school board meetings could be considered to involve "workplace use" of language, school board policy prohibiting comments critical of district employees at open sessions of board meetings was overbroad and could not be upheld as preventing employment discrimination, as it did not simply prohibit derogatory racial, sexual, ethnic and similar slurs, but instead banned all criticism, no matter how politely phrased. Baca v. Moreno Valley Unified School Dist., 1996, 936 F.Supp. 719. School board policy prohibiting comments critical of district employees at open sessions of board meetings could not be upheld against free speech challenge on theory that other persons attending board meetings were "unwilling listeners" to such comments. Baca v. Moreno Valley Unified School Dist., 1996, 936 F.Supp. 719. Since school board's policy prohibiting comments critical of district employees at open sessions of board meetings was not content-neutral, and was not narrowly drawn to accomplish any purported compelling interest, it was irrelevant whether speakers had ample alternative channels of communication. Baca v. Moreno Valley Unified School Dist., 1996, 936 F.Supp. 719. Even if school board policy prohibiting comments critical of district employees at open sessions at board meetings was content-neutral or narrowly drawn to achieve some compelling governmental interest, proffered "alternative" channels of communication were not equivalent to forum from which district sought to exclude speakers with views critical of district employees, so as to withstand constitutional challenge, since presentation at closed session would not reach the general public, while speech outside board meeting would not be protected by California statute providing that publications made in any official proceeding authorized by law are privileged, so that threat of litigation would have chilling effect on speech. Baca v. Moreno Valley Unified School Dist., 1996, 936 F.Supp. 719. Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works CA GOVT s 54954.3 Page 3 School district's interest in making sure that members of the public cannot complain about school district employees in a forum where comments would be privileged under California statute, so that employees could not maintain defamation actions, did not outweigh public's interest in being able to freely express themselves to their elected officials at open sessions of school board meetings on all issues related to the operation of public schools without fear of being subjected to tort liability, in light of California statutes providing right to speak in such forum on subject matter of the school board, and providing privilege, and in light of fact that California Constitution prevents censorship of even defamatory speech. Baca v. Moreno Valley Unified School Dist., 1996, 936 F.Supp. 719. West's Ann. Cal. Gov. Code§ 54954.3 CA GOVT§ 54954.3 END OF DOCUMENT Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 7 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865 (Cite as: 936 F.Supp. 719) Victoria BACA, Plaintiff, not justified on theory that there were alternative V. means of communication. MORENO VALLEY UNIFIED SCHOOL DISTRICT; School Board President Frank M. Motion granted. West, in His Official and Individual Capacity, [1]INJUNCTION t;-138.1 Defendants. 212k138.1 Traditional criteria which must be met before No. EDCV 96-0267 RT(VAPx). preliminary injunction will issue are: strong likelihood of success on the merits; possibility of United States District Court, irreparable injury to plaintiff if relief is not granted; C.D. California, balance of hardships favoring plaintiff, and Eastern Division. advancement of the public interest in certain kinds of cases, and in Ninth Circuit, parry may meet its Aug. 1, 1996. burden by demonstrating either combination of probable success on the merits and possibility of Citizen sought preliminary injunction to prevent irreparable injury, or that serious questions are school district and president of school board from raised and balance of hardships tips sharply in its enforcing district's policy prohibiting, at open favor, and these are not separate tests, but the outer sessions of school board meetings, comments which reaches of a single continuum. include charges or complaints against any district employee, regardless of whether employee was [1]INJUNCTION t:-138.21 identified. The District Court, Timlin, J., held that: 212k138.21 (1) under California Constitution, board could not Traditional criteria which must be met before censor speech even if speech was, or might be, preliminary injunction will issue are: strong defamatory; (2) under California statutes, open likelihood of success on the merits; possibility of session of school board meeting was a designated, irreparable injury to plaintiff if relief is not granted; limited public forum; (3) though state could limit balance of hardships favoring plaintiff; and subject matter to be discussed at limited public advancement of the public interest in certain kinds of forum, it could not limit views which might be cases, and in Ninth Circuit, parry may meet its expressed on that subject matter, and regulation of burden by demonstrating either combination of speech in such a forum is subject to the same probable success on the merits and possibility of standard which applies to regulation of speech in a irreparable injury, or that serious questions are traditional public forum; (4) policy at issue raised and balance of hardships tips sharply in its contained content-based prohibitions; (5) district's favor, and these are not separate tests, but the outer interest in making sure that members of public could reaches of a single continuum. not complain about school district employees in a forum where comments would be privileged under [2] INJUNCTION 147 California law did not outweigh public's interest in 212k147 being able to freely express themselves to their Moving party has burden of proof of each element of elected officials; (6) district employees' right to test for preliminary injunction. privacy could not be used to justify the policy; (7) complaints by member of public about district [3] CONSTITUTIONAL LAW S:90.1(5) employees, even if defamatory, legally could not 92k90.1(5) cause deprivation of employees' protected liberty Neither the United States nor the California interest, so that policy could not be justified on Constitution allows government to censor statements ground of protecting that interest; (8) policy could merely because they are false and/or defamatory. not be upheld on ground of district's interest in U.S.C.A. Const.Amend. 1; West's Ann.Cal. regulating its own meetings, on ground of secondary Const. Art. 1, § 2. effects of the prohibited speech, or on the ground of protecting unwilling listeners; and (9) policy was [4] CONSTITUTIONAL LAW G-90(1) Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 8 (Cite as: 936 F.Supp. 719) 92k9O(1) government may regulate speech because of its California Constitution provides even broader constitutionally proscribable_ content, but though guarantee of right of free speech than does the First defamatory content is constitutionally proscribable, Amendment. U.S.C.A. Const.Amend. 1; West's the government may not make further content Ann.Cal. Const. Art. 1, § 2. discrimination of proscribing only defamation critical of the government, nor may it regulate the [5] CONSTITUTIONAL LAW(8=-90.1(4) use of defamatory speech based on hostility, or 92k90.1(4) favoritism, towards ' the underlying message Under the California Constitution, school board expressed. U.S.C.A. Const.Amend. 1. could not censor speech by prohibiting citizens from speaking at open board meetings, even if their M CONSTITUTIONAL LAW a90(3) speech was, or might be, defamatory, let alone on 92k9O(3) the ground that it was negatively critical of the Under either the United States or the California district's employees. West's Ann.Cal. Const. Art. Constitution, the government may not restrain 1, § 2. speech before there has been judicial determination, in connection with which the speaker received all [5] CONSTITUTIONAL LAW 90.1(5) proper procedural safeguards, that the speech is 92k9O.l(5) actually harmful. U.S.C.A. Const.Amend. 1; Under the California Constitution, school board West's Ann.Cal. Const. Art. 1, §2. could not censor speech by prohibiting citizens from speaking at open board meetings, even if their [8] CONSTITUTIONAL LAW S:-90(3) speech was, or might be, defamatory, let alone on 92k9O(3) the ground that it was negatively critical of the Courts will not grant injunctive relief against future district's employees. West's Ann.Cal. Const. Art. speech save in the most exceptional and grave 1, § 2. circumstances, such as to prohibit disclosure of military secrets during time of war. U.S.C.A. [5] SCHOOLS G=57 Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § 345k57 2. Under the California Constitution, school board could not censor speech by prohibiting citizens from [8] CONSTITUTIONAL LAW«90.1(2) speaking at open board meetings, even if their 92k9O.l(2) speech was, or might be, defamatory, let alone on Courts will not grant injunctive relief against future the ground that it was negatively critical of the speech save in the most exceptional and grave district's employees. West's Ann.Cal. Const. Art. circumstances, such as to prohibit disclosure of 1, § 2. military secrets during time of war. U.S.C.A. Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § [6] CONSTITUTIONAL LAW C=90(1) 2. 92k90(1) Under the United States Constitution, the [8] INJUNCTION 8=89(1) government may regulate speech because of its 212k89(1) constitutionally proscribable content, but though Courts will not grant injunctive relief against future defamatory content is constitutionally proscribable, speech save in the most exceptional and grave the government may not make further content circumstances, such as to prohibit disclosure of discrimination of proscribing only defamation military secrets during time of war. U.S.C.A. critical of the government, nor may it regulate the Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § use of defamatory speech based on hostility, or 2. favoritism, towards the underlying message expressed. U.S.C.A. Const.Amend. 1. [9] CONSTITUTIONAL LAW a90.1(4) 92k9O.l(4) [6] CONSTITUTIONAL LAW *-90.1(5) For free speech purposes, "traditional public fora" 92k9O.1(5) are places such as parks and streets which Under the United States Constitution, the historically have been used for purposes of public Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 9 (Cite as: 936 F.Supp.719) assembly, while "designated public forum" is public government may not limit the views which may be forum created by government designation as a place expressed on that subject matter. U.S.C.A. or channel of communication for use by the public at Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § large. U.S.C.A. Const.Amend. 1; West's 2. Ann.Cal. Const. Art. 1, § 2. See publication Words and Phrases for other judicial [13] CONSTI=ONAL LAW a90.1(4) constructions and definitions. 92k90.1(4) Applicable standard of review for testing [10] CONSTITUTIONAL LAW(9=190.1(4) constitutionality of regulations of speech in a 9200.1(4) designated, limited public forum is the same Access to designated public forum may be limited by standard which applies to regulation of speech in a the government if it designates public property as traditional public forum, and thus before state can available only for use by certain speakers or for the enforce any content-based exclusion, it must show discussion of certain subjects, but such access that regulation is necessary to serve a compelling limitations must be reasonable in light of the purpose state interest and that it is narrowly drawn to achieve served by the forum and must be viewpoint neutral. that end, and though reasonable time, place and U.S.C.A. Const.Amend. 1; West's Ann.Cal. manner regulations are permissible, they must be Const. Art. 1, §2. content-neutral, narrowly tailored to serve significant government interest and leave open ample [111 CONSTIT MONAL LAW C-90.1(4) channels of communication. U.S.C.A. 92k90.1(4) Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § By providing by statute that school board meetings 2. are open to public comment on any item of interest to the public that is within the subject matter of [14] CONSTITUTIONAL LAW c&-90.1(4) legislative body, the California Legislature has 92k90.l(4) designated school board meetings as limited public School board policy which forbad, at risk of fora, and thus regulation of speech in open sessions expulsion, at open meetings of the board, any of board meetings must be reviewed in the light of "charges or complaints against any employee of the nature of the fora. U.S.C.A. Const.Amend. 1; District, regardless of whether or not the employee West's Ann.Cal. Const. Art. 1, § 2. West's is identified by name or by any reference which Ann.Cal.Gov.Code §§ 54951, 54952, 54953, tends to identify the employee" was a content-based 54954.3, 54954.3(a). prohibition of speech, and thus unconstitutional where not narrowly drawn to effectuate compelling [111 SCHOOLS 57 state interest. U.S.C.A. Const.Amend. 1; West's 345k57 Ann.Cal. Const. Art. 1, §2. By providing by statute that school board meetings are open to public comment on any item of interest [14] SCHOOLS C=57 to the public that is within the subject matter of 345k57 legislative body, the California Legislature has School board policy which forbad, at risk of designated school board meetings as limited public expulsion, at open meetings of the board, any fora, and thus regulation of speech in open sessions "charges or complaints against any employee of the of board meetings must be reviewed in the light of District, regardless of whether or not the employee nature of the fora. U.S.C.A. Const.Amend. 1; is identified by name or by any reference which West's Ann.Cal. Const. Art. 1, § 2. West's tends to identify the employee" was a content-based Ann.Cal.Gov.Code §§ 54951, 54952, 54953, prohibition of speech, and thus unconstitutional 54954.3, 54954.3(a). where not narrowly drawn to effectuate compelling state interest. U.S.C.A. Const.Amend. 1; West's [12] CONSTITUTIONAL LAW C-90.1(4) Ann.Cal. Const. Art. 1, § 2. 92k90.1(4) When state creates limited public forum, it may [15] CONSTITUTIONAL LAW C=90.1(4) properly limit the subject matter to be discussed, but 92k90.l(4) once particular subject matter has been designated, School district's interest in making sure that Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 10 (Cite as: 936 F.Supp.719) members of the public cannot complain about school forum on subject matter of the school board, and district employees in a forum where comments providing privilege, and in light of fact that would be privileged under California statute, so that California Constitution prevents censorship of even employees could not maintain defamation actions, defamatory speech. U.S.C.A. Const.Amend. 1; did not outweigh public's interest in being able to West's Ann.Cal. Const. Art. 1, § 2; West's freely express themselves to their elected officials at Ann.Cal.Civ.Code § 47(b)(3); West's open sessions of school board meetings on all issues Ann.Cal.Gov.Code§54954.3. related to the operation of public schools without fear of being subjected to tort liability, in light of [16] CONSTITUTIONAL LAW 90(3) California statutes providing right to speak in such 92k90(3) forum on subject matter of the school board, and When regulation of speech is content-based, providing privilege, and in light of fact that governmental interest served by regulation must be California Constitution prevents censorship of even compelling, not merely important or significant, if defamatory speech. U.S.C.A. Const.Amend. 1; regulation is to withstand constitutional scrutiny, and West's Ann.Cal. Const. Art. 1, § 2; West's whether particular governmental interest is Ann.Cal.Civ.Code § 47(b)(3); West's "compelling" is never a determined in a vacuum, but Ann.Cal.Gov.Code§ 54954.3. is measured in particular context against competing private interest at stake. U.S.C.A. Const.Amend. [15] CONSTITUTIONAL LAW 19=90.1(5) 1; West's Ann.Cal. Const. Art. 1, § 2. 92k90.1(5) School district's interest in making sure that [17] CONSTITUTIONAL LAW G;-90.1(4) members of the public cannot complain about school 92k90.1(4) district employees in a forum where comments School district's interest in'protecting its employee's would be privileged under California statute, so that right of privacy was interest it held only as employees could not maintain defamation actions, employer, not as government entity, and thus its did not outweigh public's interest in being able to interest could not be characterized as a compelling freely express themselves to their elected officials at governmental interest for purposes of upholding open sessions of school board meetings on all issues constitutionality of policy precluding comments related to the operation of public schools without critical of school district employees at open sessions fear of being subjected to tort liability, in light of of school board meetings. U.S.C.A. Const.Amend. California statutes providing right to speak in such 1; West's Ann.Cal. Const. Art. 1, §2. forum on subject matter of the school board, and providing privilege, and in light of fact that [17] SCHOOLS S;-57 California Constitution prevents censorship of even 345k57 defamatory speech. U.S.C.A. Const.Amend. 1; School district's interest in protecting its employee's West's Ann.Cal. Const. Art. 1, § 2; West's right of privacy was interest it held only as Ann.Cal.Civ.Code § 47(b)(3); West's employer, not as government entity, and thus its Ann.Cal.Gov.Code§ 54954.3. interest could not be characterized as a compelling governmental interest for purposes of upholding [15] SCHOOLS(&;-57 constitutionality of policy precluding comments 345k57 critical of school district employees at open sessions School district's interest in making sure that of school board meetings. U.S.C.A. Const.Amend. members of the public cannot complain about school 1; West's Ann.Cal. Const. Art. 19 § 2. district employees in a forum where comments would be privileged under California statute, so that [18] SCHOOLS 57 employees could not maintain defamation actions, 345k57 did not outweigh public's interest in being able to When school board holds open sessions of its freely express themselves to their elected officials at meetings and is addressed by members of the public open sessions of school board meetings on all issues pursuant to California statute, it is not functioning as related to the operation of public schools without an employer but as a "legislative body," that is,body fear of being subjected to tort liability, in light of which declares policy and makes provisions for ways California statutes providing right to speak in such and means of accomplishing declared policy, while Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 11 (Cite as: 936 F.Supp.719) if board is applying already determined policies to particular situations involving its duties as employer, [20] SCHOOLS G}57 which are considered in closed session, it is acting in 345k57 administrative or executive function. West's Even if school district's policy prohibiting comments Ann.Cal.Gov.Code §§ 54952, 54952.6, 54953, critical of district employees at open session of 54954.3, 54954.5, 54956.95, 54957.6. school board meetings was intended to protect a See publication Words and Phrases for other judicial compelling governmental interest in employees' constructions and definitions. privacy, it was not narrowly drawn to effectuate such interest, and was both over-inclusive and [19] CONSTITUTIONAL LAW Qz-90.1(1.4) under- inclusive, in that it forbid all complaints 92k90.1(1.4) against district employees, even when they were not Even if school district's interest in protecting its identified by name or position and even when employees' right to privacy could be characterized criticism would not constitute invasion of privacy, as a governmental interest, district's interest in and did not forbid speech disclosing intimate details asserting its employees' constitutional right to of district employees' private lives, if it did not do privacy was not so compelling as to trump public's so in a critical or negative [Wanner. U.S.C.A. right under United States and California Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § Constitutions to make public comments, negative or 2. otherwise, about such employees' behavior. U.S.C.A. Const.Amend. 1; West's Ann.Cal. [21]TORTS G=8.5(5.1) Const. Art. 1, § 2. 379k8.5(5.1) Crucial ingredient of tort of invasion of privacy is [19] SCHOOLS G=57 public disclosure of intimate details of one's private 345k57 life which are outside the realm of legitimate public Even if school district's interest in protecting its interest, and there is no liability when speaker employees' right to privacy could be characterized merely gives further publicity to information which as a governmental interest, district's interest in is already public or when publicity relates to matters asserting its employees' constitutional right to which plaintiff leaves open to the public eye. privacy was not so compelling as to trump public's right under United States and California [21]TORTS a8.5(7) Constitutions to make public comments, negative or 379k8.5(7) otherwise, about such employees' behavior. Crucial ingredient of tort of invasion of privacy is U.S.C.A. Const.Amend. 1; West's Ann.Cal. public disclosure of intimate details of one's private Const. Art. 1, § 2. life which are outside the realm of legitimate public interest, and there is no liability when speaker [20] CONSTITUTIONAL LAW G=90.1(1.4) merely gives further publicity to information which 92k90.1(1.4) is already public or when publicity relates to matters Even if school district's policy prohibiting comments which plaintiff leaves open to the public eye. critical of district employees at open session of school board meetings was intended to protect a [22] OFFICERS AND PUBLIC EMPLOYEES compelling governmental interest in employees' C-72.12 privacy, it was not narrowly drawn to effectuate 283k72.12 such interest, and was both over-inclusive and Normal rule is that public employee must be given under- inclusive, in that it forbid all complaints notice and opportunity to be heard before against district employees, even when they were not stigmatizing governmental action, such as dismissal identified by name or position and even when or demotion, is taken. U.S.C.A. Const.Amend. 14. criticism would not constitute invasion of privacy, and did not forbid speech disclosing intimate details [22] OFFICERS AND PUBLIC EMPLOYEES of district employees' private lives, if it did not do 72.16(1) so in a critical or negative manner. U.S.C.A. 28302.16(1) Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § Normal rule is that public employee must be given 2. notice and opportunity to be heard before Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 12 (Cite as: 936 F.Supp. 719) stigmatizing governmental action, such as dismissal demonstrate that he or she was denied due process in or demotion, is taken. U.S.C.A. Const.Amend. 14. connection with stigmatizing governmental action which so negatively affects reputation that it would [23] CONSTITUTIONAL LAW 4S=90.1(4) effectively foreclose opportunity to practice a chosen 92k9O.l(4) profession. U.S.C.A. Const.Amend. 14. Assuming that school district had compelling governmental interest in protecting its employees' [25] CONSTITUTIONAL LAW-S-255(2) liberty interest and that it could assert such interest 92k255(2) as employer to justify regulation related to its Critical or even defamatory statements about legislative functions, such interest could not be used government employee by third parties, in and of to justify policy prohibiting speech by members of themselves, cannot constitute deprivation of the public critical of employees at open sessions of constitutionally protected liberty interest since injury the school board meetings, as such speech, even if to one's reputation, without more, is not enough to defamatory, legally could not cause deprivation of state claim for loss of liberty in violation of the employees' protected liberty interest. U.S.C.A. Constitution. U.S.C.A. Const.Amend. 14. Const.Amends. 1, 14; West's Ann.Cal. Const. Art. 1, §2. [25) CONSTITUTIONAL LAW<9-278.4(1) 92k278.4(1) [23]CONSTITUTIONAL LAW(:90.1(5) Critical or even defamatory statements about 92k9O.1(5) government employee by third parties, in and of Assuming that school district had compelling themselves, cannot constitute deprivation of governmental interest in protecting its employees' constitutionally protected liberty interest since injury liberty interest and that it could assert such interest to one's reputation, without more, is not enough to as employer to justify regulation related to its state. claim for loss of liberty in violation of the legislative functions, such interest could not be used Constitution. U.S.C.A. Const.Amend. 14. to justify policy prohibiting speech by members of the public critical of employees at open sessions of [26] CONSTITUTIONAL LAW(9=90.1(4) the school board meetings, as such speech, even if 92k9O.1(4) defamatory, legally could not cause deprivation of Under California statute, school board could ensure employees' protected liberty interest. U.S.C.A. orderly discussion and exchange of information by Const.Amends. 1, 14; West's Ann.Cal. Const. Art. regulating time, place and manner for speech at its 1, § 2. meetings and also may require speakers to confine themselves to comments within school board's [23] SCHOOLS 8a57 subject matter, and such regulation, without focusing 345k57 on content of speech, is reasonable under free speech Assuming that school district had compelling guarantees. U.S.C.A. Const.Amends. 1, 14; governmental interest in protecting its employees' West's Ann.Cal. Const. Art. 1, § 2; West's liberty interest and that it could assert such interest Ann.Cal.Gov.Code§§ 54954.2, 54954.3. as employer to justify regulation related to its legislative functions, such interest could not be used [26] SCHOOLS(9=57 to justify policy prohibiting speech by members of 345k57 the public critical of employees at open sessions of Under California statute, school board could ensure the school board meetings, as such speech, even if orderly discussion and exchange of information by defamatory, legally could not cause deprivation of regulating time, place and manner for speech at its employees' protected liberty interest. U.S.C.A. meetings and also may require speakers to confine Const.Amends. 1, 14; West's Ann.Cal. Const. Art. themselves to comments within school board's 1, § 2. subject matter, and such regulation, without focusing on content of speech, is reasonable under free speech [24] CONSTITUTIONAL LAW G=275(1) guarantees. U.S.C.A. Const.Amends. 1, 14; 92k275(1) West's Ann.Cal. Const. Art. 1, § 2; West's To establish a deprivation of protected liberty Ann.Cal.Gov.Code§§54954.2, 54954.3. interest in employment context, employee must Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 13 (Cite as: 936 F.Supp. 719) [27] CONSTTTUI'IONAL LAW<9-90.1(4) preventing employment discrimination, as it did not 92k90.1(4) simply prohibit derogatory racial, sexual, ethnic and School board policy prohibiting comments critical of similar slurs, but instead banned all criticism, no school district employees at open sessions of board matter how politely phrased. U.S.C.A. meetings was not narrowly drawn so as to achieve Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § district's purported compelling interest in regulating 2; Civil Rights Act of 1964, § 703(a)(1), 42 its own meetings, without impinging on public's U.S.C.A. § 2000e- 2(a)(1); West's First Amendment rights, despite claimed interest in Ann.Cal.Gov.Code§ 12900 et seq. insuring that participation and review was "informed and dispassionate," as policy did not prohibit [29] SCHOOLS S=57 "uninformed" or "passionate" speech, and even if it 345k57 did, it would not pass constitutional muster. Even assuming that citizens' statements made in U.S.C.A. Const.Amend. 1. open session of school board meetings could be considered to involve "workplace use" of language, [27) SCHOOLS @.­57 school board policy prohibiting comments critical of 345k57 district employees at open sessions of board School board policy prohibiting comments critical of meetings was overbroad and could not be upheld as school district employees at open sessions of board preventing employment discrimination, as it did not meetings was not narrowly drawn so as to achieve simply prohibit derogatory racial, sexual, ethnic and district's purported compelling interest in regulating similar slurs, but instead banned all criticism, no its own meetings, without impinging on public's matter how politely phrased. U.S.C.A. First Amendment rights, despite claimed interest in Const.Amend. 1; West's Ann.Cal. Const. Art. 1, § insuring that participation and review was "informed 2; Civil Rights Act of 1964, § 703(a)(1), 42 and dispassionate," as policy did not prohibit U.S.C.A. § 2000e- 2(a)(1); West's "uninformed" or "passionate" speech, and even if it Ann.Cal.Gov.Code§ 12900 et seq. did, it would not pass constitutional muster. U.S.C.A. Const.Amend. 1. [30] CONSTITUTIONAL LAW G;-90.1(4) 92k90.1(4) [28] CONSTPIUTIONAL LAW(=90.1(1) School board policy prohibiting comments critical of 92k90.1(1) district employees at open sessions of board First Amendment protects speech which is meetings could not be upheld against free speech uninhibited, robust, wide-open, vehement, caustic, challenge on theory that other persons attending and sharp, as well as speech which lacks truth, board meetings were "unwilling listeners" to such social utility or popularity, or which exaggerates or comments. U.S.C.A. Const.Amend. 1; West's vilifies. U.S.C.A. Const.Amend. 1. Ann.Cal. Const. Art. 1, § 2. [28] CONSTITUTIONAL LAW C=90.1(5) [30] SCHOOLS Ca57 92k90.1(5) 345k57 First Amendment protects speech which is School board policy prohibiting comments critical of uninhibited, robust, wide-open, vehement, caustic, district employees at open sessions of board and sharp, as well as speech which lacks truth, meetings could not be upheld against free speech social utility or popularity, or which exaggerates or challenge on theory that other persons attending vilifies. U.S.C.A. Const.Amend. 1. board meetings were "unwilling listeners" to such comments. U.S.C.A. Const.Amend. 1; West's [29] CONSTTTUTIONAL LAW a90.1(4) Ann.Cal. Const. Art. 1, §2. 92k90.l(4) Even assuming that citizens' statements made in [31] CONSTITUTIONAL LAW 90.1(4) open session of school board meetings could be 92k90.l(4) considered to involve "workplace use" of language, Since school board's policy prohibiting comments school board policy prohibiting comments critical of critical of district employees at open sessions of district employees at open sessions of board board meetings was not content-neutral, and was not meetings was overbroad and could not be upheld as narrowly drawn to accomplish any purported Copr. ®West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 14 (Cite as: 936 F.Supp. 719) compelling interest, it was irrelevant whether chilling effect on speech. U.S.C.A. Const.Amend. speakers had ample alternative channels of 1; West's Ann.Cal. Const. Art. 1, § 2; West's communication. U.S.C.A. Const.Amend. 1; West's Ann.Cal.Civ.Code§47(b)(3). Ann.Cal. Const. Art. 1, § 2. [33] CONSTITUTIONAL LAW G=90(3) [31] SCHOOLS<-57 92k90(3) 345k57 "Ample alternative channels of communication," Since school board's policy prohibiting comments existence of which may render regulation of speech critical of district employees at open sessions of constitutional, must be equivalent to the proscribed board meetings was not content-neutral, and was not forum in that they should: give the speaker the same narrowly drawn to accomplish any purported opportunity to communicate information to the compelling interest, it was irrelevant whether audience about the speaker's identity; be similarly speakers had ample alternative channels of inexpensive and convenient as the proscribed communication. U.S.C.A. Const.Amend. 1; West's channel; allow access to the same audience; and be Ann.Cal. Const. Art. 1,§2. similarly effective method for communicating the message, and alternative channel of communication [32] CONSTITUTIONAL LAW a90.1(4) is not sufficiently equivalent if forcing speaker to 92k90.l(4) resort to it is more likely to have chilling effect on Even if school board policy prohibiting comments speech. U.S.C.A. Const.Amend. 1; West's critical of district employees at open sessions at Ann.Cal. Const. Art. 1, §2. board meetings was content-neutral or narrowly See publication Words and Phrases for other judicial drawn to achieve some compelling governmental constructions and definitions. interest, proffered "alternative" channels of communication were not equivalent to forum from [34] CIVIL RIGHTS G}268 which district sought to exclude speakers with views 78k268 critical of district employees, so as to withstand Loss of First Amendment freedoms, for even constitutional challenge, since presentation at closed minimal periods of time, constitutes "irreparable session would not reach the general public, while injury" for purposes of preliminary injunction. speech outside board meeting would not be protected U.S.C.A. Const.Amend. 1. by California statute providing that publications See publication Words and Phrases for other judicial made in any official proceeding authorized by law constructions and definitions. are privileged, so that threat of litigation would have chilling effect on speech. U.S.C.A. Const.Amend. [35] CIVIL RIGHTS G-268 1; West's Ann.Cal. Const. Art. 1, § 2; West's 78k268 Ann.Cal.Civ.Code§47(b)(3). For purposes of preliminary injunction against enforcement of school board policy prohibiting [32] SCHOOLS c&-57 comments in open school board meetings critical of 345k57 district employees, balance of hardships favored Even if school board policy prohibiting comments citizen opposing such policy since if injunction did critical of district employees at open sessions at not issue, citizen would be deprived of fundamental board meetings was content-neutral or narrowly rights until trial on the merits, while there was no drawn to achieve some compelling governmental indication that board had any legitimate compelling interest, proffered "alternative" channels of interest which would be adversely affected by communication were not equivalent to forum from injunction, and issuing preliminary injunction would which district sought to exclude speakers with views advance public interest, by affecting all other critical of district employees, so as to withstand member of the public who might wish to speak constitutional challenge, since presentation at closed critically of district employees or to hear such session would not reach the general public, while comments. U.S.C.A. Const.Amend. 1. speech outside board meeting would not be protected *724 Carol A. Sobel, Mark D. Rosenbaum, Los by California statute providing that publications Angeles, CA, Douglas E. Mirell, Los Angeles, CA, made in any official proceeding authorized by law for plaintiff. are privileged, so that threat of litigation would have Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 15 (Cite as: 936 F.Supp. 719, *724) Spencer E. Covert, Mark S. Williams, Parker, known as the Ralph M. Brown Act (Brown Act). Covert&Chidester, Tustin, CA, for defendants. Cal.Govt.Code, §§ 54950 et seq. [FN1] ORDER GRANTING PLAINTIFF VICTORIA FN1. All further statutory references will be to the BACA'S MOTION FOR A PRELIMINARY California Government Code except as otherwise INJUNCTION noted. TIMLIN, District Judge. Plaintiff also filed an ex pane application for a temporary restraining order and for an order to show Plaintiff Victoria Baca's (plaintiff's) motion for a cause re the issuance of a preliminary injunction preliminary injunction(motion)to enjoin the Moreno enjoining defendants and their agents and employees Valley Unified School District (District), Frank M. from enforcing against plaintiff the provisions of West(West), the president of District's school board District's policy which permitted West, as the Board (collectively defendants), and defendants' agents and president, "to deny permission to speak in the public employees from enforcing certain provisions of session portion of the Board meeting to any person District's policy related to speech at school board who mentions, by name or mere title, any public meetings, was heard by the Honorable Judge Robert employee of the defendant school board." J. Timlin. This court filed an order (1) restraining defendants The court having taken the matter under and their agents, employees and successors from submission, and after consideration of oral argument applying and enforcing the policy during the public and all papers presented to the court, the court forum session of Board meeting and (2) requiring grants plaintiff's motion for the reasons set forth in defendants to appear to show cause why they should the following opinion. not be so enjoined. I. Following oral argument at the hearing on the order PROCEDURAL HISTORY to show cause, the parties stipulated that the temporary restraining order could be extended until Plaintiff has filed a verified complaint for injunctive August 6, 1996, and that each side would provide and declaratory relief and damages against the court with briefing on whether the policy applied defendants. The complaint seeks a declaration that: to all public comments during the public, or open, as opposed to the executive, or closed, session of all (1) District's policy, which prohibits criticism of District's Board meetings, or applied only to the District employees during the open sessions of public comment period of such open sessions, and District's school board meetings (the policy), is an whether the relief requested by plaintiff overbroad and impermissible prior restraint on encompassed comments made during the open plaintiff's and other citizens' rights of free speech session of Board meetings, or only encompassed and petition *725 under the constitutions of the comments made during the public comment period. United States and California; Having considered such further briefing, the court (2) the school board's (Board's) selective concludes that the policy, by its terms, applies to all enforcement of the policy was a violation of public comments during open sessions of the Board plaintiff's right to be free of arbitrary and capricious meetings. The court further concludes that the relief enforcement of a governmental regulation under the requested by plaintiff, i.e., a declaration that the constitution of the United States; and policy suffers from the defects noted above, encompasses the policy as it applies to all such (3) the policy is a violation of plaintiffs right public comments. publicly to share her criticisms of school administration with the Board and concerned II. community members pursuant to California FACTUAL BACKGROUND Government Code section 54954.3, a code section District's policy provides, in pertinent part: found in California's open meeting law, commonly Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 16 (Cite as: 936 F.Supp. 719, *725) "Open Session Charges or Complaints Against reference to position two District employees: David .Employees ... Prohibited. Kuzmich, principal of Vista Heights Middle School (Kuzmich), and David Andrews, District's "1. Employees. superintendent (Andrews), and alleged that numerous complaints brought to them by parents of "No oral or written presentation in open session children at Vista Heights Middle School went shall include charges or complaints against any unaddressed. As she spoke, plaintiff was informed employee of the District, regardless of whether or by West that she could not mention either employee not the employee is identified by name or by any by position or by name, and that another violation of reference which tends to identify the employee. If the policy would result in her removal from the an attempt is made to include charges or complaints meeting. against an employee in any way, the Board President will order the presentation stopped at once, and the Plaintiff continued her remarks and again referred Board meeting will continue in accordance with the to Kuzmich by position and to Andrews by position established agenda. All charges or complaints and name. She was then physically removed from against employees must be submitted to the Board the meeting by a Riverside County sheriffs deputy under provisions of Board policy. at the request of West. Once removed from the meeting, she was watched over by two sheriffs "Any individual who violates this policy will be deputies to ensure that she did not attempt to go back warned to discontinue his/her comments into the meeting room. immediately. If the individual willfully interrupts the meeting by refusing to comply with the warning, Plaintiff was the only speaker to be physically the Board President may authorize the removal of removed from the room. However, other members the individual pursuant to Government Code section of the public who spoke before and after plaintiff did 54957.9." [FN2] also identified District employees by name and/or position, sometimes in a critical manner. Although FN2. Section 54957.9 provides: "In the event that some of those who spoke after plaintiff did were any meeting is willfully interrupted by a group or warned by West not to violate the policy, they were groups of persons so as to render the orderly conduct not removed. of such meeting unfeasible and order cannot be restored by removal of the individuals who are willfully interrupting the meeting, the members of Plaintiff states that she desires to "learn of shared the legislative body may order the meeting room concerns from other speakers and to allow them to cleared and continue in session...." learn of mine through use of the public comment Although the policy purports to allow the Board to period of the school board meeting." (Plaintiff's order the meeting room cleared if a speaker persists Declaration, p. 4, 110.) She states that she believes in making critical comments by such reference to she was singled out for expulsion because of her section 54957.9, the parties apparently have assumed outspokenness and because of her political activities that the consequence of engaging in proscribed speech is that the speaker alone may be removed related to educational and other school-related from the room. issues. *726 According to plaintiff's declaration, plaintiff is III. the parent of a student in the MVUSD, and is DISCUSSION president of the Mexican Political Association A. Criteria for Issuance of a Preliminary Injunction (MPA) a statewide community activist organization. On May 28, 1996, she attended an open meeting of [1] The traditional criteria which must be met District's Board. This meeting included a public before a preliminary injunction will issue are: (1) comment period during which citizens could strong likelihood of success on the merits; (2) comment on matters not necessarily included on the possibility of irreparable injury to plaintiff if relief is Board's meeting agenda. not granted; (3) a balance of hardships favoring plaintiff; and (4) advancement of the public interest During the public time period allotted for her in certain kinds of cases. Los Angeles Memorial comments, .plaintiff identified by name and by Coliseum Commission v. National Football League, Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 17 (Cite as: 936 F.Supp. 719, *726) 634 F.2d 1197, 1200-1201 (9th Cir.1980). In the on protected expression, and as such it violates the Ninth Circuit, a parry may meet its burden by California Constitution. Defendants suggest that demonstrating either (1) a combination of probable plaintiff's speech "regarding child abusers and success on the merits and the possibility of racists" is not protected by the First Amendment irreparable injury or (2) that serious questions are because it is slanderous and is a "false light raised and the balance of hardships tips sharply in its utterance[ ]," and that therefore District has a right favor. Id. at p. 1201. to prohibit these statements. (Defendants' Supp. Opposition, p. 3.) [2] These are not separate tests, but the outer reaches of a single continuum. Id. The moving [3] Neither side is correct. Plaintiff is wrong party has the burden of proof on each element of because the policy, which merely prohibits certain either test. Prescott v. County of El Dorado, 915 speech by persons already admitted to and making F.Supp. 1080, 1084 (E.D.Cal.1996). Applying the use of a public forum, is not a true or classic prior traditional criteria for issuance of a preliminary restraint, because it does not give a public official injunction to the facts of this case, the court the power to deny use of the forum in advance of the concludes, as discussed below, that the plaintiff has actual expression. Westbrook v. Teton County met all four criteria, and that a preliminary School Dist. No. 1, 918 F.Supp. 1475, 1481-1482 injunction should issue. (D.Wyo.1996) (Westbrook ). Instead, the policy is a species of censorship, i.e., a "present government B. Plaintiff Has Demonstrated a Strong Likelihood interference with or suppression of expression" of Success on the Merits accomplished through a " 'regulatory, proscriptive or compulsory' exercise of governmental power." Plaintiff has demonstrated that there is a strong Keene v. Meese, 619 F.Supp. 1111, 1118 likelihood that she will succeed on the merits, i.e., (E.D.Cal.1985), quoting Laird v. Tatum, 408 U.S. that she will succeed in establishing that: (1) speech 1, 11, 92 S.Ct. 2318, 2324-2325, 33 L.Ed.2d 154 criticizing District employees is protected from prior (1972). Defendant is wrong because neither the restraint or .*727 censorship by the freedom of United States nor California constitution allows speech components of the United States and government to censor statements merely because California constitutions; (2) the open session of a they are false and/or defamatory. school board meeting is a designated and limited public forum pursuant to the Brown Act; (3) [4) The California Constitution, article I, section 2 regulations of speech in such fora must meet the provides, in relevant part: "Every person may same constitutional standards as must regulations of freely speak, write and publish his or her sentiments speech in traditional public fora; and (4) the policy on all subjects, being responsible for the abuse of is content-based, not narrowly drawn to effectuate this right. A law may not restrain or abridge liberty compelling state interests, and therefore is facially of speech or press." This provision provides an unconstitutional. even broader guarantee of the right of free speech than does the First Amendment. Blatty v. New 1. Speech Criticizing a District Employee, Even If York Times Co., 42 Ca1.3d 1033, 1041, 728 P.2d Later Proved to Be 1177, 1182, 232 Cal.Rptr. 542, 546-547 (1986); Defamatory, Is Protected by Both the California Wilson v. Superior Court, 13 Cal.3d 652, 658, 532 [FN3] and Federal Constitutions P.2d 116, 119 Cal.Rptr. 468 (1975); Gilbert v. from Government Censorship and Prior Restraint National Enquirer, Inc., 43 Cal.AppAth 1135, 1145, 51 Ca1.Rptr.2d 91 (1996). " 'The wording of FN3. In the court's analysis of plaintiff's this section is terse and vigorous, and its meaning so constitutional challenges, it is mindful of the plain that construction is not needed. The right of principle that if the California Constitution provides independent support for plaintiffs claims, there is no the citizen[s] to freely speak, write and publish need for a decision on the federal constitutional [their] sentiments is unlimited, but [they are] issue. Carreras v. City of Anaheim,768 F.2d 1039, responsible at the hands of the law for an abuse of 1042-1043(9th Cir.1985). that right. [They] shall have no censor over [them] to whom [they] must apply for permission to speak, Plaintiff contends that the policy is a prior restraint write, or publish, but [they] shall be held Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 18 (Cite as:936 F.Supp.719, *727) accountable to the law for what [they] speak(], what harmful. Southeastern Promotions, Ltd. v. Conrad, [they] write[ ], and what [they] publish ( ].' 420 U.S. 546, 559, 95 S.Ct. 1239, 1246-1247, 43 [Citation.]" Aguilar v. Avis Rent-A-Car System, L.Ed.2d 448 (1975); Adult Video Ass'n v. Barr, Inc., 45 Cal.AppAth 933, 973, 53 Cal.Rptr.2d 599 960 F.2d 781, 789 (9th Cir.1992); People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, (1996), Peterson, P.J., concurring in part and 57, 550 P.2d 600, 130 Cal.Rptr. 328. cert. denied, dissenting in part, quoting Dailey v. Superior Court, 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289 112 Cal. 94, 97, 44 P. 458,459(1896). (1976). District's policy would leave the determination of what is "slanderous" or "false" up (5][6][7][8] Thus, under the California Constitution, to one person-in this case, West as president of the District's Board may not censor speech by Board- apparently without regard for such niceties prohibiting citizens from speaking, even if their as whether the statement, though critical, is true, or speech is, or may be, defamatory. [FN4] Therefore, whether, though false, is privileged, or whether, regardless of any lesser protection *728 for speech though couched as fact (e.g., "X is a racist"), is provided by the United States constitution [FN5], legally an expression of opinion rather than a there is a strong likelihood that plaintiff will statement of fact and hence not actionable as slander. This is the very evil the rule against censorship and establish that she is entitled to a declaration that prior restraint of speech seeks to prevent. Dailey v. 'District cannot prohibit speech on the ground that it Superior Court, 112 Cal. 94, 98, 44 P. 458, 460, is, or may be, false or defamatory, let alone on the supra (Article I, section 2, subdivision (a) of the the ground that it is negatively critical of District's California Constitution forbids prior restraint or employees. [FN6] censorship, even by judges, because this ' 'subject[s] all freedom of sentiment to the prejudices FN4. The court's conclusion therefore closes the of one man, and makes] him the arbitrary and possibility left open by the California Attorney infallible judge of all controverted points in learning, General that a legislative body might be able to religion,and government.' "). prohibit remarks "which it believes to be slanderous Furthermore, even courts will not grant injunctive or which might invade an individual's personal relief against future speech save in the most privacy." Office of the California Attorney General, exceptional and grave circumstances, e.g., to The Brown Act: Open Meetings for Local prohibit the disclosure of military secrets during time Legislative Bodies 19 (1994). (See Defendants' of war. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931); Gilbert v. Supp. Opposition at p.25.) National Enquirer,Inc.,43 Cal.AppAth 1135, 1145, 51 Cal.Rptr.2d 91, 97, supra. Defendants do not FNS. Under the United States constitution the contend that complaints about and criticisms of government may regulate speech because of its public school employees, even if scurrilous and constitutionally proscribable content. However, untrue, constitute the kind of exceptional and grave although defamatory content is constitutionally circumstances which might justify an injunction proscribable, the government "tray not make the against speech. further content discrimination of proscribing only [defamation] critical of the government," R.A.V. v. 2 The Open Session of a School Board Meeting City of St. Paul,Minnesota, 505 U.S. 377, 384, 112 Is a Designated, Limited S.Ct.2538,2543, 120 L.Ed.2d 305(1992). nor may public Forum it regulate the use of defamatory speech based on "hostility--or favoritism-towards the underlying message expressed." 505 U.S. at 386, 112 S.Ct. at [9] Traditional public fora are places such as parks 2545, supra. Here, the policy proscribes only and streets, which historically have been used for speech critical of District employees, not speech purposes of public assembly. Perry Educ. Assn. v. critical of anyone else, and does not proscribe only Perry Local Educators' Assn., 460 U.S. 37, 45, 103 defamatory criticism. S.Ct. 948, 954-955, 74 L.Ed.2d 794 (1983) (Perry FN6. Even if the policy proscribed only defamatory )• A designated, as opposed to a traditional, public forum is a public forum created by government speech, it would still contain a fatal flaw. Under designation as "a place or channel of communication either the United States or California constitutions, _the government may not restrain speech before there for use by the public at large...." Cornelius v. has been a judicial determination(in connection with NAACP Legal Defense & Educational Fund, Inc., which determination the speaker received all proper 473 U.S. 788, 803, 105 S.Ct. 3439, 3449, 87 procedural safeguards) that the speech is actually L.Ed.2d 567 (1985) (Cornelius ); Perry, 460 U.S. Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp..719 Page 19 (Cite as: 936 F.Supp. 719, *728) at 45 and 46, fn. 7, 103 S.Ct. at 955, fn. 7, 74 not appearing on the agenda unless action is L.Ed.2d 794 (1983). otherwise authorized by subdivision (b) of Section 54954.2.... [10] Access to a designated public forum may be "(b) The legislative body of a local agency may limited by the government if it designates public adopt reasonable regulations to ensure that the intent property as available only for "use by certain of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of speakers, or for the discussion of certain subjects, time allocated for public testimony on particular ..." Cornelius, 473 U.S. at 803, 105 S.Ct. at 3449, issues and for each individual speaker. supra; - Perry, 460 U.S. at 45, n. 7, 103 S.Ct. at "(c) The legislative body of a local agency shall not 955, n. 7; Widmar v. Vincent, 454 U.S. 263, 102 prohibit public criticism of the policies, procedures, S.Ct. 269, 70 L.Ed.2d 440 (1981) (forum limited to programs,or services of the agency,or of the acts or student groups); City of Madison Joint Sch. Dist. v. omissions of the legislative body. Nothing in this Wisconsin Employment Relations Comm'n, 429 subdivision shall confer any privilege or protection U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) for expression beyond that otherwise provided by (forum limited to subject matter of school board law." §54954.3. business). [FN7] If the state does limit access to the forum based on *729 subject matter or speaker The Brown Act applies to school districts and to identity, access limitations must be reasonable in school boards. §§ 45951, 54952 (FN10]; see light of the purpose served by the forum and must be Frazer v. Dixon Unified Sch. Dist., 18 Ca1.App.4th viewpoint neutral. Lamb's Chapel v. Center 781, 790-791, 22 Cal.Rptr.2d 641, 648-649(1993). Moriches Sch. Dist., 508 U.S. 384, 392-393, 113 FNIO.S.Ct. 2141, 2147, 124 L.Ed.2d 352 (1993) (Lamb's means "As used in this chapter, '1 agency' Chapel ). means a...school district, ..."§54951. "As used in this chapter, 'legislative body'means: FN7. Public property may also be designated by the "(a)The governing body of a local agency.... government for use as an unlimited public forum, "(b)A ...board, ...of a local agency, ..."§54952. i.e., for use by all groups and for the discussion of all subject matters. See, e.g., Clark v. Burleigh, 4 [11] Thus, by opening school board meetings to CalAth 474, 483 n. 8, 841 P.2d'975, 980, 14 public comment "on any item of interest to the Cal.Rptr.2d 455, 460 (1992); Cal.Ed.Code, § public, before or during the legislative body's 40041(a). consideration of the item, that is within the subject matter jurisdiction of the legislative body," The State of California has designated certain public Govt.Code, § 54954.3(a), the California Legislature property for use as public fora. Under the Brown has designated school board meetings as limited Act, the meetings of certain public bodies must be public fora, i.e., fora open to the public in general, open to the public, § 54953 [FN8], and the public but limited to comments related to the school board's must be allowed to speak at such meetings "on any "subject matter." Therefore, the open sessions of item of interest to the public, ... that is within the District's Board meetings are limited public fora, subject matter of the legislative body, ..." § and any regulation of speech in such fora must be 54954.3. [FN9] reviewed in light of the nature of the fora. [FN11] FN8. "All meetings of the legislative body of a local FN11. Although defendants concede that such agency shall be open and public, and all persons sessions are limited public fora, they contend that shall be permitted to attend any meeting of the such sessions are "highly regulated" and "similar to legislative body of a local agency, except as a non-public forum." Describing a forum as "highly otherwise provided in this chapter." §54953. regulated" begs the question of whether a particular regulation applicable to the forum is constitutional; FN9. "(a) Every agenda for regular meetings shall describing a forum as "similar to a non-public provide an opportunity for members of the public to forum" is irrelevant in the absence of any directly address the legislative body on any item of explanation of how the alleged similarity affects the interest to the public,before or during the legislative level of constitutional scrutiny to which any body's consideration of the item, that is within the regulation of speech in such forum must be subject matter jurisdiction of the legislative body, subjected. Furthermore, to the extent that provided that no action shall be taken on any item defendants rely on Kindt v. Santa Monica Rent Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 20 (Cite as: 936 F.Supp. 719, *729) Control Bd., 67 F.3d 266, 270 (9th Cir.1995) to content-based exclusion it must show that its argue that a California school board meeting is a regulation is necessary to serve a compelling state "non-public forum,' such reliance is misplaced, interest and that it is narrowly drawn to achieve that because the Brown Act specifically creates a public " end," and that although [r]easonable time, place forum, albeit one limited to comments related to and manner regulations are permissible," they must school boards' "subject matter.' be "content- neutral, ... narrowly tailored to serve a 3. The Same Constitutional Standards of Scrutiny significant government interest, and leave open Apply to the Regulation of ample channels of communication. [Citations.]" Speech in The Limited Public Forum of an Open Id.; Clark v. Burleigh, 4 CalAth 474, 483, 841 Session of a School Board P.2d 975, 980, 14 Cal.Rptr.2d 455, 460, supra; see Meeting As Apply to the Regulation of Speech in also 4 Rotunda& Nowak, Treatise on Constitutional a Traditional Public Forum Law(2d ed. 1992)§ 20.47 at p. 311. Defendants contend that when a limited public 4. The Policy Contains Content-Based Prohibitions forum is involved, the applicable standard of [14] District's policy clearly contains content-based constitutional analysis is not the strict scrutiny or compelling interest test applied to traditional public Prohibitions on speech, despite defendants' fora, citing White v. City of Norwalk, 900 F.2d assertions to the contrary. It forbids, at the risk of 1421, 1423 (9th Cir.1990). Notably, however, expulsion from the forum, speech which contains defendants never clearly state what test does apply any charges or complaints against any employee of when a court decides the constitutionality of a policy the District, regardless of whether or not the employee is identified which regulates or prohibits certain speech in a by name or by any reference limited public forum. which tends to identify the employee." (Emphasis added.) It is difficult to imagine a more content- [12] Defendants' lack of clarity can be traced to the based prohibition on speech than this policy, which fact that defendants have confused *730 two allows expression of two points of view (laudatory different principles, i.e., they have confused the rule and neutral) while prohibiting a different point of that when the state creates a limited public forum it view (negatively critical) on a particular subject properly may limit the subject matter to be discussed matter (District employees' conduct or with the rule that once the particular subject matter Performance). Burson v. Freeman, 504 U.S. 191, which may be discussed in a particular limited forum 197, 112 S.Ct. 1846, 1850, 119 L.Ed.2d 5, 13 has been designated, the government may not then (1992) ("[T]he First Amendment's hostility to also limit the views which may be expressed on that content-based regulation extends ... to a restriction subject matter. Lamb's Chapel, 508 U.S. at on a particular viewpoint.... [Citations]"); see also 392-393, 113 S.Ct. at 2147, supra. Thus, in White Lamb's Chapel, 508 U.S. at 392-393, 113 S.Ct. at v. City of Norwalk, the case cited by defendants, the 2147, supra. In fact, policies which attempt to court held that although city officials properly could suppress or burden only critical speech are regularly restrict public speakers to the subject matter at hand, held to be content-based. See, e.g., Westbrook v. i.e., the particular agenda item being discussed, and Teton County School Dist. No. 1, 918 F.Supp. could stop speech which was unrelated to the subject 1475, 1494, (D.Wyo.1996), holding that a school matter and hence irrelevant, the city officials could district's policy, which limited and restricted not cut off speech because the moderator disagreed teachers' speech criticizing other staff members, with the view expressed. 900 F.2d at 1424- 1425. administrators or school board members by restricting the audience to which such criticisms [13] Thus, contrary to defendants' contention, the could be directed, was content-based because it applicable standard of review for testing the distinguished between favored and disfavored speech constitutionality of regulations of speech in a on the basis of the views expressed; Rubin v. City designated, limited public forum is the same of Santa Monica, 823 F.Supp. 709, 713 standard which applies to regulation of speech in a (C.D.Cal.1993), holding that an ordinance granting traditional public forum. Perry, 460 U.S. at 45-46, greater First Amendment rights to "speakers who 103 S.Ct. at 955. This means that even in a limited support 'the human services objectives of the City' " public forum, before the state can enforce "[any] (emphasis added) was impermissibly content- based. Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 21 (Cite as: 936 F.Supp. 719, *730) Cf. Feminist Women's Health Center v. Blythe, 32 103 S.Ct. at 955 (content-based exclusion requires Cal.AppAth 1641, 1662, 39 Ca1.Rptr.2d 189, 199 "compelling" state interest; content-neutral time, (1995): "A restriction against activities within a place and manner regulations must serve given area is content neutral, as it makes no "significant" government interest). Therefore, reference Jo the issues or viewpoints raised. defendants' failure to assert, save for the one [Citations.]" (Emphasis added.) exception noted above, that District's interests are "compelling" is significant. 5. The Policy Is Not Narrowly Drawn to Effectuate a Compelling State Interest As to this one exception, whether a particular governmental interest is "compelling" is never Defendants contend that the policy serves three determined in a vacuum. Instead, it is measured in a "important" and "significant" government interests: particular context against the competing private (a) the privacy interests of District's employees interest at stake. See, e.g., Wisconsin v. Yoder, (Defendants' Opposition *731 at p. 17), (b) the 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 liberty interests of District's employees (Defendants' L.Ed.2d 15 (1972) ("there [must be] a state interest Opposition at p. 17-18), and (c) the right of the of sufficient magnitude to override the interest Board "to regulate its own meeting and structure the claiming protection under the Free Exercise flow of information in a manner insuring that all Clause"); National Treasury Employees Union v. concerned may participate and review the Von Raab, 489 U.S. 656, 672, 109 S.Ct. 1384, information in an informed and dispassionate 1394, 103 L.Ed.2d 685 (1989) ("these [privacy] manner." (Defendants' Opposition, p. 20.) expectations [of certain Customs employees required to undergo drug-screening as a condition of transfer [15] Notably, with one exception, defendants do not or promotion into certain types of positions] [do not] contend that these interests are "compelling." That outweigh the Government's compelling interests in exception is that defendants do contend that because safety and the integrity of our borders." The defamatory statements made during open sessions of circumstances of this case are such that the court Board meetings are absolutely privileged under concludes that District's interest in making sure that California Civil Code section 47(b)(3), and because members of the public cannot complain about school its employees cannot maintain defamation actions to district employees in a forum where their comments prevent such statements being made to the Board, it would be privileged does not outweigh the public's has a compelling interest in prohibiting such interest in being able freely to express themselves to statements during open sessions, and instead their elected officials on all issues related to the requiring complaints and charges against employees operation of public schools without fear of being to be made in writing, apparently as part of an subjected to tort liability. That the public's interest administrative process, or to be made to the Board in outweighs District's claimed interest is made closed session. (Defendants' Supp. Opposition at pp. abundantly clear by these facts: (1) the California 9-10.) Legislature enacted specific legislation providing members of the public with a privilege to protect [16] When, as here, a regulation is content-based, them from the chilling effect of the threat of the governmental interest served by the regulation litigation in such fora; (2) the Brown Act provides must be compelling, not merely important or that the public have a right to speak in such fora, so significant, if the regulation is to withstand long as such speech is within the subject matter of constitutional scrutiny. Perry, 460 U.S. at 45-46, the school board; and(3) the California Constitution, 103 S.Ct. at 955. It is a well-known attribute of as discussed above, prevents censorship of even constitutional law that balancing tests use specific defamatory speech. [FN12] terms of art to express the nature and/or weight of the interests which must be balanced against each FN12. Based on the California Constitution's other. Cf., e.g., Mississippi University for Women prohibition on censorship, the employees themselves v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, legally could not prevent members of the public from making defamatory statements; why then should 3336; 73 L.Ed.2d 1090 (1982) (constitutionality of District be able to accomplish on such employees' gender- based discrimination weighs "important" behalf that to which they themselves have no legal governmental interests); Perry, 460 U.S. at 45-46, right? Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 22 (Cite as: 936 F.Supp. 719, *731) a. District's Employees' Right to Privacy [19] Second, even if District's interest in protecting Even assuming for the sake of argument that its employees' right to privacy could be District were to characterize its interest in protecting characterized as a governmental interest, District's its employees' right to privacy *732 as compelling, reliance on such interest presupposes that District's such interest cannot be used to justify the policy for interest in asserting its employees' constitutional two reasons. right to privacy is so compelling that it trumps the public's First Amendment right to make public [17)[18] First, District's interest in protecting its comments, negative or otherwise, about such employees' right of privacy is an interest it holds employees' behavior. This is a questionable only as an employer, not as a government entity, supposition. See, e.g., Carey v. Brown, 447 U.S. e.g., a legislative body charged with permitting 455, 466-467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d public comment at its meetings. Thus, its interest as 263 (1980), noting that there is a hierarchy of First an employer in protecting its employees' right to Amendment values, and that " 'The maintenance of privacy cannot be characterized as a compelling the opportunity for free political discussion to the governmental interest. [FN13] See Waters v. end that government may be responsive to the will of Churchill, 511 U.S. 661, —, 114 S.Ct. 1878, 1887- the people and that changes may be obtained by 1888, 128 L.Ed.2d 686 (1994) discussing difference lawful means, an opportunity essential to the security between government's interest as a sovereign versus of the Republic, is a fundamental principle of our its mission as an employer. constitutional system.' [Citations.]" With, due respect to the District's employees' right to privacy FN13. When a school board holds open sessions of under both the California and federal constitutions, its meetings and is addressed by members of the under these circumstances such right must give way public pursuant to the Brown Act, it is not to the more fundamental constitutional right of functioning as an employer, but as a legislative freedom of expression under both constitutions. body. See §§ 54952, 54952.6, 54953, 54954.3. Legislative bodies declare policy and make provisions for the ways and means of accomplishing [20] Third, even if District's policy is intended to declared policy. California Radioactive Materials protect a compelling governmental interest, it is not Management Forum v. Dept. of Health Services narrowly drawn to effectuate such interest, and is (Senate Rules Committee), 15 Cal.App.4th 841, both over-inclusive and under-inclusive as to the 870, 19 Cal.Rptr.2d 357, 377(1993). In connection speech it prohibits. with adopting policies and making provisions for carrying out policies, one aspect of the legislative [21] The policy is over-inclusive because it forbids body's function is to listen to public testimony, including public criticism of those persons all complaints against District employees, even when implementing the policies, i.e., school district they are not identified by name or position [FN14], employees. §54954.3. and because it forbids all criticism of specific In contrast, as defendants themselves recognize, employees even when such criticism would not Defendants' Opposition at pp. 25-26, matters related constitute an invasion of privacy. " '[A] crucial to District's duties as an employer are considered in ingredient of the tort [of invasion of privacy] is a closed session. See, e.g., § 54956.95 (workers' public disclosure of private facts [citations], that is, compensation liability and claims considered in the unwarranted publication of intimate details of closed session); § 54954.5 (public employee appointment, public employment, public employee one's private life which are outside the realm of performance evaluation, public employee discipline/ legitimate public interest [citation].... there can be dismissal/release, conference with labor negotiator no privacy with respect to a matter which is already are all topics which may be discussed in closed public [citation] or which has previously become session); § 54957.6 (salaries, salary schedules, and part of the public "domain" [citation]. Moreover, fringe benefits to be considered in closed session). there is no liability when the [speaker] merely These matters involve applying already determined policies to particular situations, which is an gives further publicity to information about the administrative or executive function. California [person who is the *733 subject of discussion] which kadioactive Materials Management Forum v. Dept. is already public or when the further publicity relates of Health Services (Senate Rules Committee), 15 to matters which the plaintiff leaves open to the Cal.AppAth at 870, 19 Cal.Rptr.2d at 377, supra. public eye [citation].' [Citation.]" Gilbert v. Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 23 (Cite as: 936 F.Supp. 719, *733) National Enquirer, Inc., 43 Cal.App.4th at 1149, 51 a policy prohibiting speech by members of the Cal.Rptr.2d at 99, supra. The policy forbids public public, because prohibiting such speech does not disclosure of any criticism, regardless of whether the effectuate the desired purpose of protecting criticism reveals private facts about the employee, or employees from a deprivation of their. liberty merely expresses the speaker's opinion about the interests. employee's performance or conduct as a public employee or involves matters which the employee [24)To establish a deprivation of a protected liberty has revealed in the classroom, administrative interest in the employment context, an employee meetings, or other arenas open to public scrutiny. must demonstrate that he or she was denied due process in connection with stigmatizing FN14. It is difficult to discern how a statement governmental action which action so negatively which does not identify by name or position any affects his or her reputation that it effectively particular employee can violate any particular forecloses the opportunity to practice a chosen employee's right to privacy. profession. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573-574, 92 S.Ct. 2701, The policy is under-inclusive because it does not 2707-2708, 33 L.Ed.2d 548 (1972); Cafeteria & forbid speech which does disclose intimate details of Rest. Wkrs. U., Local 473 v. McElroy, 367 U.S. a District employee's private life but which does not 886, 894-896, 81 S.Ct. 1743, 1748-1749, 6 L.Ed.2d do so in a critical or negative manner. 1230(1961). Because the policy does not forbid all speech which [25] Because only the government, i.e., the might invade District employees' right to privacy, employee's employer, can provide the employee and forbids other speech which would not constitute an invasion of privacy, it is clear that the policy is with due process related to the government's not narrowly drawn to effectuate District's alleged threatened stigmatizing action, it follows that one interest in protecting its employees' right to privacy. who is not the employee's employer can not directly deprive the employee of due process. Gini v. Las b. District's Employees' Liberty Interest Vegas Metropolitan Police Dept., 40 F.3d 1041, 1044 (9th Cir.1994). Such a third party can only be [22] District also contends that it has a compelling liable to the employee if the employee can show that interest in protecting its employees' constitutional the third party could reasonably foresee that the third liberty interests, i.e., its employees' right to notice Parry's statements to the governmental employer and an opportunity to be heard, although District is would cause the employee to be terminated without a none too clear about_what event triggers such right pre- termination or name-clearing hearing. Id. to notice and an opportunity to be heard in this Critical or even defamatory statements about the particular case. As discussed below, the normal rule employee by third parties, in and of themselves, also is that a public employee must be given notice and cannot constitute deprivation of a constitutionally- an opportunity to be heard before stigmatizing protected liberty interest because injury to one's governmental action, e.g., dismissal or demotion, is reputation, without more, is not enough to state a taken; District's position seems to be that its claim for loss of liberty in violation of the employees are entitled to advance notice and an constitution. Siegert v. Gilley, 500 U.S. 226, opportunity to be heard about any critical comment 233-234, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277 about an employee made by a member of the public (1991); WMX Technologies, Inc. v. Miller, 80 F.3d to the Board. 1315, 1319 (9th Cir.1996); Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d at 1045, supra. [23] Assuming for the sake of argument that District has a compelling governmental interest in protecting •734 Therefore, because complaints by members of its employees' liberty interest, and assuming further the public about District employees, even if that it can assert such interest as an employer to defamatory, legally cannot cause a deprivation of the justify a regulation related to its legislative employees' protected liberty interest, a policy functions--debatable assumptions as discussed forbidding such complaints cannot be justified by above--nonetheless its interest in protecting its merely claiming that the complaints have such employees' liberty interests cannot be used to justify effect. Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 24 (Cite as: 936 F.Supp. 719, *734) c. District's Interest in Regulating Its Own Meetings prohibited speech's secondary effects, citing Aguilar v. Avis Rent-A-Car System, Inc., 45 Cal.App.4th [26][27][281 District also contends that the policy is 933, 53 Ca1.Rptr.2d 599, supra. In Aguilar, the justified because of its interest in regulating its appellate court reversed an injunction enjoining a meetings. Indeed, a school board can ensure an supervisory employee " 'from using any derogatory orderly discussion and exchange of information by racial or ethnic epithets directed at, or descriptive regulating the time, place, and manner for speech at of, Hispanic/Latino employees of Avis....' " 45 its meetings, and may also require speakers to Cal.AppAth at 937, 53 Cal.Rptr.2d at 602. confine themselves to comments within the school Although the court concluded that the injunction was board's subject matter. See footnote 9, ante. Here, not content-based and was constitutional because it the Board has done so in a portion of its policy targeted "conduct amounting to employment entitled "Agenda/Meeting Materials" as recited in discrimination as a 'secondary effect' of such speech pages 44 through 49 of Exhibit A to Defendants' within the meaning of R.A.V. v. St. Paul(1992)505 Opposition. Such regulation of conduct, e.g., by U.S. 377 [120 L.Ed.2d 305, 112 S.Ct. 2538]", and setting time limits and providing that speakers who did not target the expressive content of the speech, actually disrupt a meeting may be removed, without 45 Cal.AppAth at 937, 53 Cal.Rptr.2d at 601-602, it focusing on the content of speech, is reasonable. also concluded the injunction was over-broad to the Perry, 460 U.S. at 45-46, 103 S.Ct. at 955. But the extent it attempted to enjoin conduct committed policy here, which focuses on content and not only outside the workplace, and accordingly reversed and conduct, is not narrowly drawn so as to achieve remanded the cause for modification. Id. at p. 938, District's purported compelling interest without 53 Cal.Rptr.2d at p. 602. impinging upon the public's First Amendment rights, which rights include the right to be passionate and Notably, defendants never identify the conduct even uninformed in the expression of one's views. amounting to a secondary effect allegedly caused by [FN 15] the speech they seek to prohibit. For example, defendants do not contend that criticism of District FN15. District also tried to justify its resort to employees by members of the public speaking at a content-based regulation by claiming it has an Board meeting constitute employment interest in ensuring that participation and review is discrimination, the secondary effect discussed in "informed and dispassionate." However, the policy Aguilar, possibly because such comments do not does not prohibit "uninformed" or "passionate" involve "[f]requent or pervasive workplace use of... speech; it prohibits only speech critical of District employees, regardless of how informed or slurs resulting in an abusive work environment...." dispassionate such speech may be. And even if the 45 Cal.AppAth at 943, 53 Ca1.Rptr.2d at 605, policy were directed at only passionate or emphasis added. uninformed speech, it would not pass constitutional muster. The First Amendment protects speech which [29] Furthermore, even assuming that citizens' is uninhibited, robust, wide- open, vehement, statements made in the open session of a Board caustic, and sharp, as well as speech which lacks meeting could be considered to involve "workplace truth, social utility or popularity or which use" of language, a questionable assumption at best, exaggerates or vilifies. New York Times Co. v. Sullivan,376 U.S. 254,270-271, 84 S.Ct.710,721, the policy here *735 would be overbroad—it does not 11 L.Ed.2d 686(1964). simply prohibit derogatory racial, sexual, ethnic and similar slurs related to categories protected under 6. The Policy Cannot Be Justified on the Ground Title VII of the Civil Rights Act of 1964 (42 U.S.C. of the Secondary Effects of § 2000e-2(a)(1)) and the Fair Employment and the Prohibited Speech or on the Ground that Housing Act (Cal.Govt.Code, §§ 12900 et seq.), but "Unwilling Listeners" in the instead bans all criticism, no matter how politely Audience Must Be Protected from Hearing phrased. Negative Comments about the District's Employees [30] District also contends that it has an important interest in controlling complaints and charges against Defendants also contend they may regulate the employees during its meetings because other persons content of speech at Board meetings because of the attending Board meetings are "unwilling listeners," Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 25 (Cite as: 936 F.Supp. 719, *735) who do not have the option of refusing to listen to District employees. They contend that she may speak the speaker's negative comments. Defendants cite to them through District's complaint resolution Martin v. City of Struthers, 319 U.S. 141, 147-148, process, and that she may speak to them during 63 S.Ct. 862, 865- 866, 87 L.Ed. 1313 (1943) for closed sessions. They also point out that she may this proposition. Martin v. City of Struthers is of no address the public orally or in writing without assistance to defendants. In that case, a city adopted recourse to the Board meeting as a forum. Based on an ordinance which made it an offense to summon these alternative channels of communication, and on the inhabitant of a home to the door when their further contention that the regulation is content distributing handbills, advertisements, or other neutral and narrowly drawn, they contend the policy circulars. The Supreme Court held that the passes any constitutional test. ordinance violated the First Amendment, and noted that the decision as to whether a particular However, the court has determined that the Board's householder wished to discuss the information being policy is not content-neutral and that it is not disseminated by door-to-door canvassers should be narrowly drawn to accomplish even District's left to the will of the individual occupant, not purported compelling interests. It therefore is usurped by the government making a decision for all irrelevant whether or not plaintiff and speakers with its inhabitants. a similar point of view have ample alternative channels of communication. "One is not to have the Here, District's policy, to the extent it is claimed to exercise of [one's] liberty of expression in be justified as necessary to protect "unwilling appropriate places abridged on the plea that it may listeners" at Board meetings, suffers from a similar be exercised in some other place." Schneider v. infirmity. District has assumed that every person at New Jersey, 308 U.S. 147, 163, 60 S.Ct. 146, 151, its meetings does not want to hear complaints and 84 L.Ed. 155 (1939). In other words, "An criticisms about District employees, just as the City otherwise invalid restriction on protected activity is of Struthers assumed that all of its inhabitants did not not saved by the availability of other means of want to be summoned to their doors for a possible expression. [Citation.]" Pref. Communications v. exchange of information. There is no evidentiary City of Los Angeles, Cal., 754 F.2d 1396, 1410(9th basis for such an assumption here, any more than in Cir.1985), cert. granted, City of Los Angeles v. Martin v. City of Struthers. Pref. Communications, 474 U.S. 979, 106 S.Ct. 380, 88 L.Ed.2d 333 (1985), jmt. aff d and Furthermore, the concept of protecting the remanded, City of Los Angeles v. Pref. *736 "unwilling listener" is tied to residential privacy. Communications, 476 U.S. 488, 106 S.Ct. 2034, 90 Frisby v. Schultz, 487 U.S. 474, 484-485, 108 S.Ct. L.Ed.2d 480 (1986), appeal after remand, Pref. 2495, 2502, 101 L.Ed.2d 420 (1988). In locations Communications v. City of Los Angeles, 13 F.3d other than their private residences, individuals are 1327 (1994), cert. denied, Pref. Communications v. expected "simply to avoid speech they do not want to City of Los Angeles, --- U.S. ----, 114 S.Ct. 2738, hear, [citations], ..." Id. Thus, at a Board meeting, 129 L.Ed.2d 859 (1994); H-CHH Associates v. it is up to the individual members of the audience to Citizens for Representative Government, 193 decide whether they want to listen to complaints and Cal.App.3d 1193, 1213, 238 Ca1.Rptr. 841 (1987), criticisms of District employees, and, if they choose cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 not to listen,they are free to leave. L.Ed.2d 446 (1988) ("A regulating authority may not adopt rules which preclude the exercise of free 7. The Presence of Alternative Means of expression in an appropriate place, even on the Communication Between Plaintiff and the Board, or ground another place is available. [Citations.]"). Between Plaintiff and Other Members of the of As discussed above, the open session of a school Public, Does Not Justify or Validate the Otherwise board meeting is a legally proper place for citizens Unconstitutional Policy to voice their complaints about a school district's employees. The policy is an invalid restriction on [31] Defendants contend that the policy does not speech at such meetings, and the fact that plaintiff prohibit plaintiff from addressing the Board, and that and others critical of District employees may speak instead they are merely regulating when and how she in closed sessions, in public, or even on the may do so if she wants to express complaints against schoolhouse steps, does not validate the otherwise Copr.m West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 26 (Cite as: 936 F.Supp. 719, *736) invalid policy. Ass'n v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950) (indirect discouragements [32] Furthermore, even if this court had concluded are fully capable of a coercive effect on speech). that the policy was content-neutral or content-based but narrowly drawn to achieve some compelling In light of the above-noted elements related to governmental interest, the proffered "alternative" alternative channels of communication, it is apparent channels of communication are not equivalent to the that the alternative channels of communication forum from which District seeks to exclude plaintiff suggested by District are not equivalent to the forum and others with views critical of District's provided by the open session of the Board meeting. employees. First, although the present administrative process provided by the Board for a person who files a [33] While no single case sets out a definitive list of complaint with District against a District employee the specific elements to be considered in determining appears to provide at some point in the process an what constitutes the requisite "ample alternative opportunity for the complainant to address the Board channels of communication," Clark v. Community about such complaint in closed session, the for Creative Non-Violence, 468 U.S. 288, 293, 104 complainant could not reach the same audience S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984), the cases which she or he could reach in an open session of do indicate that such channels must be equivalent to the Board, i.e., other interested members of the the proscribed forum, i.e., they should (1) give the general public. After all, closed sessions, by their speaker the same opportunity to communicate very nature, are not open to the general public as are information to the audience about the speaker's the open sessions of school board meetings. identity (because the identity of the speaker is an Furthermore, requiring all speech critical of District important component of many attempts to persuade), employees to occur *737 during closed sessions not City of Ladue v. Gilleo, 512 U.S. 43, --, 114 only tends to restrict the audience which the speaker S.Ct. 2038, 2046, 129 L.Ed.2d 36 (1994), (2) be may reach, but also restricts the information similarly inexpensive and convenient as the available to the general public, a result clearly proscribed channel, id., (3) allow access to the same contrary to that intended by the Brown Act. [FN16] audience, and (4) be a similarly effective method for communicating the message. Metromedia, Inc. v. FN16. "In enacting this chapter, the Legislature City of San Diego, 453 U.S. 490, 517, 101 S.Ct. finds and declares that the public commissions, 2882, 2897, 69 L.Ed.2d 800 (1981), quoting boards and councils and the other public agencies in Linmark Associates, Inc. v. Willingboro, 431 U.S. this State exist to aid in the conduct of the people's 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 business. It is the intent of the law that their actions be taken openly and that their deliberations be (1977). conducted openly. "The people of the State do not yield their Additionally, although the cases do not specifically sovereignty to the agencies which serve them. The so state in the context of what constitutes ample people, in delegating authority, do not give their alternative channels of communication, an public servants the right to decide what is good for alternative channel of communication is not the people to know and what is not good for them to sufficiently equivalent to the proscribed forum if know. The people insist on remaining informed so forcingthe speaker to resort to it is more likely to that they may retain control over the instruments Y they have created." (Govt.Code, § 54950, emphasis have a chilling effect on speech. Lamont v. added.) Postmaster General, 381 U.S. 301, 309, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (conc. opn.) Second, although speakers have a right to speak in ("[I]nhibition as well as prohibition against the public or even on the sidewalk in front of the exercise of precious First Amendment rights is a Board's meeting place, which right is unfettered by power denied to government"); Bantam Books, Inc. need to request permission from District or its v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 board, any speech there, as opposed to speech in the L.Ed.2d 584 (1963) (First Amendment violated Board meeting, is not protected by California Civil when-state attempts to achieve the suppression of Code, section 47(b)(3), which provides that speech it deems objectionable through means other publications made in any official proceeding than formal sanctions); American Communications authorized by law are privileged. [FN17] Thus, Copr.©West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 27 (Cite as: 936 F.Supp.719, *737) comments made outside the Board meeting may Amendment rights. [Citation.]" American-Arab subject the speaker to the threat of litigation, a threat Anti-Discrimination Committee v. Reno, 70 F.3d at which in turn has a chilling effect on speech. 1058, supra. Because the traditional public fora do not provide speakers with the same protection from civil liability D. The Balance of Hardships Favors Plaintiff as is available for speech which occurs in a school board meeting, the traditional public fora are not [35] If a preliminary injunction does not issue, equivalent channels of communication. plaintiff will be deprived of her fundamental First Amendment rights until trial on the merits. In FN17. See Frisk v. Merrihew, 42 Cal.App.3d 319, contrast, there is no indication that defendants have 323-324, 116 Cal.Rptr. 781, 783 (1974) (school any legitimate compelling interest, let alone a board meetings are official proceedings within the fundamental constitutional right, which will be meaning of California Civil Code section 47(b)(3)); adversely affected if a preliminary injunction does see also Brody v. Montalbano, 87 Cal.App.3d 725, issue. Therefore, the balance of hardships clearly 731-732, 151 Cal.Rptr. 206, 211 (1978), cen. denied,444 U.S. 844, 100 S.Ct. 87, 62 L.Ed.2d 57 favors plaintiff. (1979) (absolute privilege applies to parents' communication with school board which is intended E. Issuing a Preliminary Injunction Will Advance to prompt official action by board regarding school the Public Interest administrator's conduct); Martin v. Kearney, 51 Cal.App.3d 309, 311, 124 Cal.Rptr. 281, 282 The policy affects not only plaintiff's First (1975) (absolute privilege applies to parents' Amendment rights, but those of all other •738 communication with school board which is intended members of the public who may wish either to speak to prompt official action by board regarding school critically of a District employee's conduct or teacher's conduct). performance, or to hear such comments made by Therefore, even if the policy was not content-based, other members of the public at a public session of aBoard meeting. there are not ample alternative channels of communication which are the equivalent of the forum from which the speech in question is F. Conclusion excluded. Plaintiff has met all the traditional criteria for C. There Is a Possibility of Irreparable Injury to issuance of a preliminary injunction: (1) she has a Plaintiff If Relief Is Not Granted strong likelihood of succeeding on the merits of this case; (2) there will be irreparable injury to plaintiff [34] As discussed above, there is more than a if relief is not granted; (3) the balance of hardships substantial likelihood that plaintiff will succeed on favors plaintiff; and (4) the public's interest will be the merits of her case. That being so, plaintiff's advanced if an injunction is granted. Los Angeles First Amendment freedoms, as well as those of other Memorial Coliseum Commission v. National members of the public who might wish to criticize Football League, 634 F.2d at 1200-1201, supra. District employees during the open session of a Therefore, the motion is granted and the court Board meeting, are in danger of impairment if a orders that a preliminary injunction issue as follows: preliminary injunction does not issue to enjoin defendants from applying the policy to persons IT 1S ORDERED that pending hearing and attending Board meetings pending a final determination of this cause on the merits, defendants determination on the merits. The loss of First Moreno Valley Unified School District and Frank Amendment freedoms, for even minimal periods of M. West and their agents, employees and successors time, unquestionably constitutes irreparable injury. are hereby restrained and enjoined from applying Elrod v. Burns, 427 U.S. 347, 373-374, 96 S.Ct. and enforcing the policy during the open session of 2673, 2690, 49 L.Ed.2d 547 (1976); American- any Board meeting. Arab Anti-Discrimination Committee v. Reno, 70 F.3d-1045, 1057-1058 (1995). The duration of a THE COURT HEREBY WAIVES the requirement trial is an " 'intolerably long' period during which to of Federal Rules of Civil Procedure, Rule 65(c), that permit the continuing impairment of First plaintiff give security before a preliminary injunction Copr. 0 West 1999 No Claim to Orig. U.S. Govt. Works 936 F.Supp. 719 Page 28 (Cite as: 936 F.Supp.719, *738) may issue, on the grounds that (1) the high (D.Or.1987), and(3)to require a bond would have a probability of success on the merits favors exercising negative impact on plaintiff's constitutional rights, as the court's discretion to dispense with such security, well as the constitutional rights of other members of People ex rel. Van de Kamp v. Tahoe Regional the public affected by the policy. Smith v. Board of Planning Agency, 766 F.2d 1319, 1326 (9th Elections Com'rs for Chicago, 591 F.Supp. 70, Cir.1985), (2) it appears unlikely that either 71-72(N.D.I11.1984). defendant would incur any significant cost or damages as a result of the preliminary injunction, U.S. v. State of Or., 675 F.Supp. 1249, 1253 END OF DOCUMENT Copr.0 West 1999 No Claim to Orig. U.S. Govt. Works *END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END* 1710854 - PAUL J GEIGER Date and Time Printing Started: 04/26/99 08:20:00 pm(Central) Date and Time Printing Ended: 04/26/99 08:20:25 pm(Central) Oflline Transmission Time: 00:00:25 Number of Requests in Group: 3 Number of Lines Charged: 1846 *END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*