HomeMy WebLinkAboutResponse Regarding Cease and Desist Letter Alleging Brown Ac ��r�iuuGTo 2000 Main Street,
Huntington Beach,CA
92648
City of Huntington Beach APPROVED 6-0-1
"i9G"F•410, ' (GRUEL—ABSENT)
File#: 25-499 MEETING DATE: 6/17/2025
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Michael Vigliotta, City Attorney
PREPARED BY: Michele Hoffman, Senior Legal Assistant
Subject:
Response Regarding Cease and Desist Letter Alleging Brown Act Violations
Statement of Issue:
The City of Huntington Beach received a cease and desist letter from the ACLU dated May 22, 2025,
alleging violation of the Ralph M. Brown Act.
Financial Impact:
Not Applicable
Recommended Action:
Without admitting any violation of the Ralph M. Brown Act, the City of Huntington Beach hereby
unconditionally commits that it will cease, desist from, and not repeat the challenged past action as
described in the letter from the ACLU dated May 22, 2025, and analysis section of this staff report.
Alternative Action(s):
Direct staff accordingly.
Analysis:
The City of Huntington Beach received a cease and desist letter from the ACLU dated May 22, 2025,
alleging that the following described past action of the legislative body violates the Ralph M. Brown
Act:
1) Warning members of the public that they may not"make crude gestures" or use "foul language"
when they provide public comment;
2) Warning members of the public that they may not address individual councilmembers by name
when they provide public comment;
3) Silencing, muting, or ordering the removal of members of the public who "make crude gestures,"
use "foul language," or refer to individual councilmembers by name when they provide public
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File#: 25-499 MEETING DATE: 6/17/2025
comment; or
4) Enforcing the portion of the Council's "Meeting Decorum" rules that prohibits purportedly "abusive"
language, "whistling, clapping, stomping of feet, repeated waving of arms" as inherently and
automatically "disruptive."
Environmental Status:
Not Applicable
Strategic Plan Goal:
Non Applicable -Administrative Item
Attachment(s):
1. May 22, 2025 Letter from ACLU
City of Huntington Beach Page 2 of 2 Printed on 6/11/2025
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275
AMERICAN:CIVIL UBERTIESUNION
FOUNDATION
Southern.California
Sent via email
May 22,2025
Mayor Pat Burns
Honorable Members of the City Council
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
SupplementalComm@Surfcity-hb.org
City.Council@surfcity-hb.org
RE: Brown Act Cease and Desist Letter
Dear Mayor Burns and Members of the Huntington Beach City Council:
I write on behalf of Wendy Rincon to notify you of violations of the Brown Act
committed by Mayor Burns during the public comment period at the May, 6 2025 Huntington
Beach City Council meeting and to seek commitments from Mayor Burns and the City Council
to prevent similar violations in the future.Mayor Burns violated the Brown Act, Government
Code §§ 54950 et seq., along with the United States and California Constitutions, by announcing
that"making crude gestures or use of foul language"would be considered disruptive conduct
that would place audience members at risk of removal or even arrest,by prohibiting speakers
from addressing individual councilmembers by name during the public comment period, and by
cutting off Ms. Rincon and others when they when they did attempt to address individual
councilmembers by name. Additionally,the City Council's published"Meeting Decorum"rules
are overbroad, and any attempt to enforce them as written would violate the public's statutory
and constitutional rights.
Summary of Events
As he addressed the audience before the public comment period opened',Mayor Burns
stated that
1 These statements from Mr.Burns can be found starting at approximately 21 minutes and 45 seconds into the video
of the May 6 meeting,found here:https://www.voutube.com/watch?v=TtcEsV8YMXU. Subsequent references to
timestamps on the meeting video refer to the same video and link.
EXECUTIVE DIRECTOR Hector O.Vil lagra
CHAIR Michele Goodwin VICE CHAIRS Rob Hennig and Stacy Horth-Neubert
CHAIRS EMERITI Marla Stone Shari Leinwand Stephen Rohde Danny Goldberg Allan K.Jonas* Burt Lancaster* Irving Lichtenstein,MD*lad
Mohn Laurie Ostrow' Stanley K.Sheinbaum'
'deceased
1313 WEST EIGHTH STREET• SUITE 200 • LOS ANGELES, CA 90017 • T 213,977.9500 • F 213.915.0220 • ACLUSOICAL.ORG
276
Huntington Beach Brown Act Cease and Desist Letter
May 22,2025 Page 2
the penal code provides that every person who,without authority or lawful,uh,willfully
disturbs or breaks up a meeting may be guilty of a misdemeanor... yelling from the
seating gallery,making crude gestures or use of foul language at the podium from:the
seating area or within the council chambers is considered disturbing the meeting.... If it
is determined that your behavior is disruptive to the council conducting the City business,
police are prepared to escort you out, and you may be arrested. Your act of disruption
[will]-be considered,uh, cause for you to be,uh,removed.And should you have cause or
want to directly address a councilmember one on one, don't do it from the podium we're
one council up here, and address the council as a whole. And if you want to do that one
on one,please fill out a blue slip and arrange that meeting with that council member...
And if you want to use foul language or anything, I've got this little red button that'll
mute ya...Disruptive behavior, impeding or delaying our ability to conduct the council's
business will not be tolerated. California Penal Code Section 403 prohibits disrupting this -
meeting and enforcement action will be taken for violations of this law.
As the meeting progressed,Mayor Burns made good on his threat to prevent speakers
from addressing councilmembers directly:
• At approximately the 38-minute mark of the video, after a speaker had referred to a
councilmember by name, claiming that he had misled the public about the City's library
policies,Mayor Burns interrupted her to say"Ma'am, remember, address us as one
unit...the Council." When the speaker went on to mention another councilmember by
name, Mayor Burns silenced her microphone, saying"Ma'am,you were warned. You're
done.Next speaker."
• At approximately the 1:11:30 mark on the video, after a speaker referred to a
councilmember by his first name to critique his stance on the City's library policies and
on library ballot measures that will soon be voted on by the public,Mayor Burns
interrupted her saying"Please don't address ...Address the whole council, as'one unit,"
making clear that she was prohibited from referring to a councilmember by name. The
speaker then tried referring to that councilmember without using his name, and instead
referencing specific actions she accused him of engaging in (yelling at her at 1 am in the
morning that he was going to put his library ballot measure campaign signs on top of
hers,to obscure her signs, and then proceeding to "actually ... do that"). When the
speaker went on to start to accuse another councilmember of related actions, using his
first name,Mayor Burns muted her microphone and interrupted her saying"Now,hold
on,take a break."Mayor Burns then addressed the City Attorney saying"Point of order,
can, are we not, is the rule not that they address the complete council?"The City
Attorney responded"You should just address the Council, but to the extent they need to
mention names,they can."Mayor Burns appeared to have heard and acknowledged this
admonition, saying"Ok."He then allowed the speaker to continue,though she did not
address anyone by name in her continued comments.
• Nevertheless, and despite the City Attorney's affirmation of the publics right to mention
individual councilmembers' names,Mayor Burns stopped Ms. Rincon from addressing
specific councilmembers by name less than an hour later. At approximately the 2:09:25
mark on the video, after Ms. Rincon addressed specific councilmembers' use of library
measure campaign signs, referring to them by name,Mayor Burns interrupted her saying
"If you can,Ma'am,please address the council," advising her to "fill out a blue card,"
presumably to request an individual meeting with the councilmembers whose conduct she
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
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Huntington Beach Brown Act Cease and Desist Letter
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wished to critique,"making clear that she would not be permitted to address individual
councilmembers during the public comment period.
• At approximately 2 hours and 35 minutes into the video, former Huntington Beach City
Councilmember sums up Mayor Burns' conduct during the meeting, stating that"cutting
off speakers for naming councilmembers is unconstitutional. The First Amendment
protects our right to criticize elected officials by name during public comment. Mayor,
censorship doesn't just happen at our library, it's happening right here at this
microphone."
Brown Act and Constitutional Violations
First,Mayor Burns violated the Brown Act by informing the public that"making crude
gestures or use of foul language"would be considered disruptive behavior that would place them
in jeopardy of ejection or even arrest and prosecution.A core Brown Act requirement is that,
during a regular meeting of a legislative body, members of the public"must be allowed to speak
... 'on any item of interest to the public, ... that is within the subject matter of the legislative
body." Gov't. Code § 54954.3. While the Brown Act does allow for the removal of individuals
who are"disrupting" a meeting, as long as the presiding officer follows appropriate procedures,
the authority to remove applies only to people who are"engaging in behavior during a meeting
of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly
conduct of the meeting." Gov't Code § 54957.95. Warning members of the public that they may
be removed from a meeting or even arrested and prosecuted for conduct that does not begin to
rise to this level impermissibly chills their rights to address their elected officials.
Each of the speakers that Mayor Burns silenced or warned were addressing aspects of the
City's library policies when Mayor Burns prevented them from speaking. These are matters that
are clearly within the subject matter of the City Council, and there can be no question that they
are matters of immense public interest.None of the speakers that Mr.Burns silenced or warned
was engaged in disruptive conduct as contemplated by Section 54957.95. The video instead
makes clear that they were all calm and measured as they addressed the Council. The Mayor had
no legitimate basis for preventing these speakers from providing their public comments, and he
certainly had no legitimate basis for indicating that their speech was in any way"disruptive."
The Mayor and Council may not silence speech, or deem it disruptive of a meeting,
merely because they believe it is offensive.Acosta v. City of Costa Mesa, 718 F.3d 800, 812-13
(9th Cir. 2013) (holding rule against "personal, impertinent,profane" or"insolent" remarks at
city council meeting violated First Amendment); White v. City of Norwalk, 900 F.2d 1421, 1425
(9th Cir. 1990) ("[A] speaker may not be stopped from speaking because the moderator disagrees
with the viewpoint he is expressing."). This is true even if the speaker wishes to use words the
Mayor or counsel disapproves of.See Cohen v. California,403 U.S. 15,26 (1971) (noting
"much linguistic expression serves a dual communicative function: it conveys not only ideas
capable of relatively precise, detached explication, but otherwise inexpressible emotions as well"
and"words are often chosen as much for their emotive as their cognitive force").
Under the First Amendment, "speech cannot be restricted simply because it is upsetting
or arouses contempt,"and"in public debate we must tolerate insulting, and even outrageous,
speech in order to provide adequate breathing space to the freedoms protected by the First
Amendment."Snyder v. Phelps, 562 U.S. 443,458 (2011) (cleaned up);see also, e.g.,Dworkin
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
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Huntington Beach Brown Act Cease and Desist Letter
May 22, 2025 Page 4
v. Hustler Magazine, Inc., 867 F.2d 1188, 1199 (9th Cir. 1989) (holding"speech is not
actionable simply because it is base and malignant"and"speech may not be suppressed simply
because it is offensive") (cleaned up). As the Supreme Court has recognized, one cannot"forbid
particular words without also running a substantial risk of suppressing ideas in the process.
Indeed, governments might soon seize upon the censorship of particular words as a convenient
guise for banning the expression of unpopular views."Id
To the extent that Mayor Burns may have been attempting to enforce the City Council's
published"Meeting Decorum"rules, it is important to note that those rules are also
unconstitutionally overbroad. The rules state, in relevant part, that"[n]o person in the audience at
a City Council meeting shall engage in conduct that disrupts the orderly conduct of any City
Council meeting, including,but not limited to,the utterance of loud,threatening or abusive
language,whistling, clapping, stomping of feet,repeated waving of arms or other disruptive
acts."'The Council may enact rules of decorum for its open meetings,but those rules will be
facially overbroad in violation of the First Amendment if they allow a presiding officer to "eject
an attendee"for anything short of"`actually disturbing or impeding a meeting.'Acosta v. City
of Costa Mesa, 718 F.3d 800, 811 (9th Cir. 2013) (quoting Norse v. City of Santa Cruz, 629 F.3d -
966, 976 (9th Cir. 2010) (en banc). There may be circumstances where some of the behaviors
listed in the Council's decorum rules would"actually" disturb or disrupt a meeting, but the
Council may not impose a blanket prohibition on those behaviors or deem them inherently
disruptive. "Actual disruption means actual disruption. It does not mean constructive disruption,
technical disruption,virtual disruption, nunc pro tunc disruption, or imaginary disruption. The
[Council] cannot define disruption so as to include non-disruption."Norse, 629 F. 3d. at 976.
The Council's decorum rules constitute precisely the sort of re-definition prohibited by Norse:
Because "crude gestures" and"foul language" are not inherently disruptive,the Mayor
has no legitimate basis for prohibiting them. The First Amendment reflects"a profound national
commitment to the principle that debate on public issues should be uninhibited,robust, and wide-
open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials."New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
A"core postulate of free speech law" is that the"government may not discriminate against
speech based on the ideas or opinions it conveys,"no matter how"offensive to a substantial
percentage of the members of any group"the speech might be.Iancu v. Brunetti, 588 U.S. 388,
393 (2019). The First Amendment protects speech that is "deeply offensive to many." United
States v. Eichman,496 U.S. 310, 318 (1990).
Mayor Burns' explanations of his policies, and the Council's decorum rules themselves, -
also violate the First Amendment because they are vague and fail to provide adequate notice of
the type of conduct they prohibit.3 "It is a basic principle of due process than an enactment is
void for vagueness if its prohibitions are not clearly defined . . . [W]here a vague statute abuts
2 The City Council's"Meeting Decorum"rules can be found at _
https://www.huntingtonbeachca.gov/government/city_clerk/meeting_decorum_agenda comments.php#::text=No%
20person%20in%20the%20audience,arms%20or%20other%20disruptive%20acts.
3 Courts are also highly suspicious of attempts to regulate speech under the guise of regulating conduct. See Cohen,
supra,403 U.S.,at 18(reversing criminal conviction for disturbing the peace for wearing jacket that had the words
Fuck the Draft on it and stating"[t]he only`conduct' which the State sought to punish is the fact of
communication.")
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
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Huntington Beach Brown Act Cease and Desist Letter
May 22, 2025 Page 5
upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of
those freedoms." Grayned v. City of Rockford,408 U.S. 104, 108-109 (1972) (cleaned up).
Vague restrictions on speech are inherently likely to discourage people from exercising their
First Amendment rights. "In the vagueness inquiry, like in the context of overbreadth,the
requirement that laws be precise is aimed at preventing `chill': rather than risk sanctions, citizens
will steer far wider than necessary to avoid engaging in prohibited speech;the First Amendment,
however,needs breathing space to survive. Accordingly, standards of permissible statutory
vagueness are strict in the area of free expression."Hunt v. City of Los Angeles, 601 F. Supp. 2d
1158, 1170 (C.D. Cal. 2009), affd in part, remanded-in part on other grounds, 638 F.3d 703 (9th
Cir. 2011) (citations and quotation marks omitted). "[W]here First Amendment freedoms are at
stake, an even greater degree of specificity and clarity of laws is required, and courts ask whether
language is sufficiently murky that speakers will be compelled to steer too far clear of any
forbidden areas."Edge v. City of Everett, 929 F.3d 657, 664 (9th Cir. 2019) (cleaned up).
While prohibitions against"making crude gestures or use of foul language" and against
the use of"loud"or"abusive language"are impermissible because they allow for expulsions for
conduct that is not"actually"disruptive,Norse, 629 F.3d at 976, they are also unconstitutionally
vague because it is impossible for a member of the public to decipher and determine what types
of conduct the Council or Mayor Burns might decide fit into these categories. It is not clear what
kinds of gestures they might deem"crude"or what type of language they might decide is"foul"
or"abusive."After all,"one man's vulgarity is another's lyric." Cohen, 403 U.S. at 25.See, e.g.,
id. at 26 ("we cannot indulge the facile assumption that one can forbid particular words without
also running a substantial risk of suppressing ideas in the process") (reversing conviction of
individual charged with disturbing the peace by wearing a jacket with the words"Fuck the
Draft"in a corridor of the Los Angeles Courthouse); Duran v.Arizona, 904 F.3d 1372, 1378 (9th
Cir. 1990) (First Amendment protects person making obscene gesture towards, and directing
obscenities at,police officer).
Finally, The Mayor's prohibition against naming individual councilmembers, and his
requirement that all comments be directed to the Council as a whole violates the First
Amendment and the Brown Act.Meetings of the City Council constitute limited public forums.
See White v. City of Norwalk, 900 F.2d 1421, 1425 (1990). In a limited public forum,the
government may enact reasonable restrictions to preserve the space for its intended purpose.
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 131 (2001). The Mayor's prohibition,
however, is plainly unreasonable.Preventing the public from addressing an individual
councilmember directly leads to absurd results. For example, it would prevent a person from
directly responding to a remark made by a particular councilmember except through a needlessly
complicated contrivance. It also ignores the fact that the Council does not always act as a
cohesive body. In the case of a split vote, it makes no sense for a member of the public to
castigate councilmembers who voted in the way the constituent preferred rather than directly
addressing the members of the council who voted the other way.
"Debate over public issues, including the qualifications and performance of public
officials [], lies at the heart of the First Amendment. Central to these principles is the ability to
question and challenge the fitness of the administrative leader of a [government body], especially
in a forum created specifically to foster discussion about[issues within the body's purview]."
Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951, 958 (S.D. Cal. 1997) (citing Schenck v.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
LSU
Huntington Beach Brown Act Cease and Desist Letter
May 22, 2025 Page 6
Pro—Choice Network, 117 S.Ct. 855, 858 (1997);McIntyre v. Ohio Elections Comm'n, 514 U.S.
334, 344-45 (1995);First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1987);Buckley
v. Valeo,424 U.S. 1, 14 (1976);New York Times v. Sullivan, 376 U.S.254 (1974). The Mayor
may not impose a prohibition preventing members of the public from engaging in this type of
questioning and challenging of individual councilmembers.
Moreover,the Brown Act itself indicates that the public shall have the right to speak on
"any item of interest...within the subject matter jurisdiction of the legislative body."
Government Code Section 54954.3(a). Critiques of the actions or inactions of individual
councilmembers on issues within the Council's jurisdiction constitute items of interest.
Conclusion and Cease and Desist Demand
•
The Mayor's threats to remove members of the public who make"crude gestures or use
of foul language," or to have them arrested or prosecuted violated the Brown Act, as did his
decision to silence speakers who addressed individual councilmembers by name, including Ms.
Rincon.Additionally any attempt to enforce the Council's published"Meeting Decorum"rules
would violate the Brown Act,the First Amendment to the United States Constitution, and the
Liberty of Speech Clause of the California Constitution.Accordingly,pursuant to Government
Code section 54960.2(a), I hereby notify Mayor Burns and the City Council that the Mayor and
the Council must immediately cease and desist from: 1)warning members of the public that they
may not"make crude gestures"or use"foul language"when they provide public comment; 2)
warning members of the public that they may not address individual councilmembers by name
when they provide public comment; 3) silencing,muting, or ordering the removal of members of
the public who"make crude gestures,"use"foul language,"or refer to individual
councilmembers by name when they provide public comment; or 4) enforcing the portion of the
Council's"Meeting Decorum"rules that prohibits purportedly"abusive" language, "whistling,
clapping, stomping of feet, repeated waving of arms"as inherently and automatically
"disruptive."
Pursuant to Government Code section 54960.2(b), Ms.Rincon may take legal action if
the City does not respond to this letter within 30 days,providing its unconditional commitment
to cease, desist from, and not repeat the violations described here. In that eventuality,Ms.Rincon
would be entitled to court costs and attorney fees.Id.
Please let me know if you have any questions or would like any additional information. I .
look forward to your response. I can be reached via email at jarkovitz@aclusocal.org.
Sincerely,
•
Jonathan Markovitz
Free Expression and Access to Government Staff Attorney
Cc:
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
z�1
Huntington Beach Brown Act Cease and Desist Letter
May 22, 2025 Page 7
City Attorney Michael Vigliotta
MVigliotta@surfcity-hb.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
2J2
From: Charlie Jackson
To: 5uoolementalcomm(alsurfcity-hb.orq
Subject: Item 16,number 25-499.Cease and desist
Date: Monday,June 16,2025 2:49:06 PM
On March 18,Mayor Burns antagonized the audience and that lead to ejecting the audience from the chambers.If
Mayor Burns had not antagonized the audience,things might have gone differently.
The display of the DJT bust was intended to antagonize the crowd. The muting and censoring speakers antagonized
the audience.Stealing time from the speakers also antagonized the audience.
Mayor Burns caused the problem.
When I read the Cease and Desist letter,I realized that these disrespectful actions have been going on for a long
time before the May meetings,and they have had profound impacts.
Mayor Burns,please stop attacking the 1st Amendment Rights of our Huntington Beach citizens.
Charles Jackson
24 year resident of Huntington Beach
From: i.m
To: suoolementalcommOOsurfcity-hb.orq;CITY COUNCIL(INCL.CMO STAFF1
Subject elected public servants.not bullies.build back OUR HB!ACLU cease&desist for bullying!!stop it.
Date: Monday,June 16,2025 4:41:28 PM
somehow, you were elected (corruption), but HB saw through your lies &
deception about our PUBLIC LIBRARY...60/40 landslide. now, it's time for our
community to develop some unity again! your job needs to focus on stop
tearing our HB apart for your weird porn obsession, "anti freedom to read"
(anti-woman, anti-gay, anti-single parent) campaign failure. over$1 million to
show, you are wrong about HB. We are a cool beach town, let's bring it back!
We have real issue to deal with! get to work! stop the many unnecessary
lawsuits you wage for publicity... stop hemorrhaging OUR MONEY. GET TO
WORK. STOP FAILING.
-julie
from AC-LU "Cease and Desist,:May.22, 2025"
Conclusion and Cease and Desist Demand
The Mayor's threats to remove members of the public who make"crude gestures or use
of foul language," or to have them arrested or prosecuted violated the Brown Act, as did
his
decision to silence speakers who addressed individual councilmembers by name,
including Ms.
Rincon.Addd hio al aftem tto'enforee tTi%Cocznrciii<'s i lis re eetiln'
4,i4truitnafiai
:
w.
ul LLiolateAthe Rrowii Act .the.First Air a!a `iriieiit:ta the: nitett trite onati i
aridll i1
LibeTro Speecji au Cce C acl a i,Constit Lion A cardn!i 1 P rsuant.td
„ + v"glen
�r 9di: ( ' hereby notify Mayor Burns;and,the:City;Caunci that the Mayor
and
the Connell Must itiniediately cease,and desist from. 1),Warning members of the public
that.M they°
.
may not"make crude gestures" or use"foul language"when they provide public
comment;2)
Warning meuibers.ofthe publicthat they may not address individual.µcouneiimembers by
name
when they.provide,public comment;3)silencing,muu€titg,or ordering the removal of
`members of
the,public who"make crude ge res,"use"foul language,"or;referto individual
couneilmembersby name when they"provide public comment;or 4)enforcing the
port?on of the
Councils Meeting Decorum"rules that prohibits purportedly"abusive"language,
hist ing,
clapping,stomping,of feet,repeated waving of"arms"as inherently and automatically
"disruptive."`
Pursuant to Government Code section 54960.2(b),Ms. Rincon may take legal action if
the City does not respond to this letter within 30 days, providing its unconditional
commitment
to cease, desist from, and not repeat the violations described here. In that eventuality,
Ms.Rincon
would be entitled to court costs and attorney fees.Id.
Please let me know if you have any questions or would like any additional information.I
look forward to your response.I can be reached via email at jarkovitz@aclusocal.org.
Sincerely,
Jonathan Markovitz
Free Expression and Access to Government Staff Attorney
Cc:Huntington Beach Brown Act Cease and Desist Letter
May 22,2025 Page 7
City Attorney Michael Vigliotta
MVigliotta@surfcity-hb.org
Cease and desist in it's entirety:
Sent via email
May 22,2025
Mayor Pat Burns
Honorable Members of the City Council
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
SupplementalComm@Surfcity-hb.org
City.Council@surfcity-hb.org
RE:Brown Act Cease and Desist Letter
Dear Mayor Burns and Members of the Huntington Beach City Council:
I write on behalf of Wendy Rincon to notify you of violations of the Brown Act
committed by Mayor Burns during the public comment period at the May,6 2025 Huntington
Beach City Council meeting and to seek commitments from Mayor Burns and the City Council
to prevent similar violations in the future.Mayor Burns violated the Brown Act,Government
Code§§54950 et seq.,along with the United States and California Constitutions,by announcing
that"making crude gestures or use of foul language"would be considered disruptive conduct
that would place audience members at risk of removal or even arrest,by prohibiting speakers
from addressing individual councilmembers by name during the public comment period,and by
cutting off Ms.Rincon and others when they when they did attempt to address individual
councilmembers by name.Additionally,the City Council's published"Meeting Decorum"rules
are overbroad,and any attempt to enforce them as written would violate the public's statutory
and constitutional rights.
Summary of Events
stated that
As he addressed the audience before the public comment period opened',Mayor Burns
These statements from Mr.Bums can be found starting at approximately 21minutes and 45 seconds into the video
of the May 6 meeting,found here:https://www.youtube.com/watch?v=TtcEsV8YMXU.Subsequent references to
timestamps on the meeting video refer to the same video and link.
Huntington Beach Brown Act Cease and Desist Letter
May 22,2025 Page 2
the penal code provides that every person who,without authority or lawful,uh,willfully
disturbs or breaks up a meeting may be guilty of a misdemeanor...yelling from the
seating gallery,making crude gestures or use of foul language at the podium from the
seating area or within the council chambers is considered disturbing the meeting....If it
is determined that your behavior is disruptive to the council conducting the City business,
police are prepared to escort you out,and you may be arrested.Your act of disruption
[will]be considered,uh,cause for you to be,uh,removed.And should you have cause or
want to directly address a councilmember one on one,don't do it from the podium we're
one council up here,and address the council as a whole.And if you want to do that one
on one,please fill out a blue slip and arrange that meeting with that council member...
And if you want to use foul language or anything,I've got this little red button that'll
mute ya...Disruptive behavior,impeding or delaying our ability to conduct the council's
business will not be tolerated.California Penal Code Section 403 prohibits disrupting this
meeting and enforcement action will be taken for violations of this law.
As the meeting progressed,Mayor Burns made good on his threat to prevent speakers
from addressing councilmembers directly:
•At approximately the 38-minute mark of the video,after a speaker had referred to a
councilmember by name,claiming that he had misled the public about the City's library
policies,Mayor Burns interrupted her to say"Ma'am,remember,address us as one
unit...the Council."When the speaker went on to mention another councilmember by
name,Mayor Burns silenced her microphone,saying"Ma'am,you were warned.You're
done.Next speaker."
•At approximately the 1:11:30 mark on the video,after a speaker referred to a
councilmember by his first name to critique his stance on the City's library policies and
on library ballot measures that will soon be voted on by the public,Mayor Burns
interrupted her saying"Please don't address...Address the whole council,as one unit,"
making clear that she was prohibited from referring to a councilmember by name.The
speaker then tried referring to that councilmember without using his name,and instead
referencing specific actions she accused him of engaging in(yelling at her at lam in the
morning that he was going to put his library ballot measure campaign signs on top of
hers,to obscure her signs,and then proceeding to"actually...do that").When the
speaker went on to start to accuse another councilmember of related actions,using his
first name,Mayor Burns muted her microphone and interrupted her saying"Now,hold
on,take a break."Mayor Bums then addressed the City Attorney saying"Point of order,
can,are we not,is the rule not that they address the complete council?"The City
Attorney responded"You should just address the Council,but to the extent they need to
mention names,they can."Mayor Burns appeared to have heard and acknowledged this
admonition,saying"Ok."He then allowed the speaker to continue,though she did not
address anyone by name in her continued comments.
•Nevertheless,and despite the City Attorney's affirmation of the public's right to mention
individual councilmembers'names,Mayor Burns stopped Ms.Rincon from addressing
specific councilmembers by name less than an hour later.At approximately the 2:09:25
mark on the video,after Ms.Rincon addressed specific councilmembers'use of library
measure campaign signs,referring to them by name,Mayor Burns interrupted her saying
"If you can,Ma'am,please address the council,"advising her to"fill out a blue card,"
presumably to request an individual meeting with the councilmembers whose conduct sheHuntington Beach Brown Act Cease
and Desist Letter
May 22,2025 Page 3
wished to critique,"making clear that she would not be permitted to address individual
councilmembers during the public comment period.
•At approximately 2 hours and 35 minutes into the video,former Huntington Beach City
Councilmember sums up Mayor Burns'conduct during the meeting,stating that"cutting
off speakers for naming councilmembers is unconstitutional.The First Amendment
protects our right to criticize elected officials by name during public comment.Mayor,
censorship doesn't just happen at our library,it's happening right here at this
microphone."
Brown Act and Constitutional Violations
First,Mayor Bums violated the Brown Act by informing the public that"making crude
gestures or use of foul language"would be considered disruptive behavior that would place them
in jeopardy of ejection or even arrest and prosecution.A core Brown Act requirement is that,
during a regular meeting of a legislative body,members of the public"must be allowed to speak
... 'on any item of interest to the public,...that is within the subject matter of the legislative
body."Gov't.Code§54954.3.While the Brown Act does allow for the removal of individuals
who are"disrupting"a meeting,as long as the presiding officer follows appropriate procedures,
the authority to remove applies only to people who are"engaging in behavior during a meeting
of a legislative body that actually disrupts,disturbs,impedes,or renders infeasible the orderly
conduct of the meeting."Gov't Code§54957.95.Warning members of the public that they may
be removed from a meeting or even arrested and prosecuted for conduct that does not begin to
rise to this level impermissibly chills their rights to address their elected officials.
Each of the speakers that Mayor Burns silenced or warned were addressing aspects of the
City's library policies when Mayor Burns prevented them from speaking.These are matters that
are clearly within the subject matter of the City Council,and there can be no question that they
are matters of immense public interest.None of the speakers that Mr.Burns silenced or warned
was engaged in disruptive conduct as contemplated by Section 54957.95.The video instead
makes clear that they were all calm and measured as they addressed the Council.The Mayor had
no legitimate basis for preventing these speakers from providing their public comments,and he
certainly had no legitimate basis for indicating that their speech was in any way"disruptive.
The Mayor and Council may not silence speech,or deem it disruptive of a meeting,
merely because they believe it is offensive.Acosta v. City of Costa Mesa,718 F.3d 800,812-13
(9th Cir.2013)(holding rule against"personal,impertinent,profane"or"insolent"remarks at
city council meeting violated First Amendment);White v.City of Norwalk,900 F.2d 1421,1425
(9th Cir. 1990)("[A]speaker may not be stopped from speaking because the moderator disagrees
with the viewpoint he is expressing.").This is true even if the speaker wishes to use words the
Mayor or counsel disapproves of.See Cohen v. California,403 U.S.15,26(1971)(noting
"much linguistic expression serves a dual communicative function:it conveys not only ideas
capable of relatively precise,detached explication,but otherwise inexpressible emotions as well"
and"words are often chosen as much for their emotive as their cognitive force").
Under the First Amendment,"speech cannot be restricted simply because it is upsetting
or arouses contempt,"and"in public debate we must tolerate insulting,and even outrageous,
speech in order to provide adequate breathing space to the freedoms protected by the First
Amendment."Snyder v.Phelps,562 U.S.443,458(2011)(cleaned up);see also,e.g.,DworkinHuntington Beach Brown Act
Cease and Desist Letter
May 22,2025 Page 4
v.Hustler Magazine,Inc.,867 F.2d 1188,1199(9th Cir. 1989)(holding"speech is not
actionable simply because it is base and malignant"and"speech may not be suppressed simply
because it is offensive")(cleaned up).As the Supreme Court has recognized,one cannot"forbid
particular words without also running a substantial risk of suppressing ideas in the process.
Indeed,governments might soon seize upon the censorship of particular words as a convenient
guise for banning the expression of unpopular views."Id.
To the extent that Mayor Burns may have been attempting to enforce the City Council's
published"Meeting Decorum"rules,it is important to note that those rules are also
unconstitutionally overbroad.The rules state,in relevant part,that"[n]o person in the audience at
a City Council meeting shall engage in conduct that disrupts the orderly conduct of any City
Council meeting,including,but not limited to,the utterance of loud,threatening or abusive
language,whistling,clapping,stomping of feet,repeated waving of arms or other disruptive
acts."2 The Council may enact rules of decorum for its open meetings,but those rules will be
facially overbroad in violation of the First Amendment if they allow a presiding officer to"eject
an attendee"for anything short of c"actually disturbing or impeding a meeting."'Acosta v. City
of Costa Mesa,718 F.3d 800,811 (9th Cir.2013)(quoting Norse v.City of Santa Cruz,629 F.3d
966,976(9th Cir.2010)(en banc).There may be circumstances where some of the behaviors
listed in the Council's decorum rules would"actually"disturb or disrupt a meeting,but the
Council may not impose a blanket prohibition on those behaviors or deem them inherently
disruptive."Actual disruption means actual disruption.It does not mean constructive disruption,
technical disruption,virtual disruption,nunc pro tunc disruption,or imaginary disruption.The
[Council]cannot define disruption so as to include non-disruption."Norse,629 F.3d.at 976.
The Council's decorum rules constitute precisely the sort of re-definition prohibited by Norse.
Because"crude gestures"and"foul language"are not inherently disruptive,the Mayor
has no legitimate basis for prohibiting them.The First Amendment reflects"a profound national
commitment to the principle that debate on public issues should be uninhibited,robust,and wide-
open,and that it may well include vehement,caustic,and sometimes unpleasantly sharp attacks
on government and public officials."New York Times Co.v.Sullivan,376 U.S.254,270(1964).
A"core postulate of free speech law"is that the"government may not discriminate against
speech based on the ideas or opinions it conveys,"no matter how"offensive to a substantial
percentage of the members of any group"the speech might be.lancu v.Brunetti,588 U.S.388,
393(2019).The First Amendment protects speech that is"deeply offensive to many."United
States v.Eichman,496 U.S.310,318(1990).
Mayor Bums'explanations of his policies,and the Council's decorum rules themselves,
also violate the First Amendment because they are vague and fail to provide adequate notice of
the type of conduct they prohibit.3"It is a basic principle of due process than an enactment is
void for vagueness if its prohibitions are not clearly defined...[W]here a vague statute abuts
2 The City Council's"Meeting Decorum"rules can be found at
https://www.huntingtonbeachca.gov/govemment/city_clerk/meeting_decorum_agendacomments.php#:—:texrNo%
20person%20in%20the%20audience,arms%20or%20other%20disruptive%20acts.
3 Courts are also highly suspicious of attempts to regulate speech under the guise of regulating conduct.See Cohen,
supra,403 U.S.,at 18(reversing criminal conviction for disturbing the peace for wearing jacket that had the words
Fuck the Draft on it and stating"[t]he only`conduct'which the State sought to punish is the fact of
communication.")Huntington Beach Brown Act Cease and Desist Letter
May 22,2025 Page 5
upon sensitive areas of basic First Amendment freedoms,it operates to inhibit the exercise of
those freedoms."Grayned v. City of Rockford,408 U.S.104, 108-109(1972)(cleaned up).
Vague restrictions on speech are inherently likely to discourage people from exercising their
First Amendment rights."In the vagueness inquiry,like in the context of overbreadth,the
requirement that laws be precise is aimed at preventing`chill':rather than risk sanctions,citizens
will steer far wider than necessary to avoid engaging in prohibited speech;the First Amendment,
however,needs breathing space to survive.Accordingly,standards of permissible statutory
vagueness are strict in the area of free expression."Hunt v.City of Los Angeles,601 F.Supp.2d
1158, 1170(C.D.Cal.2009),affd in part,remanded in part on other grounds,638 F.3d 703(9th
Cir.2011)(citations and quotation marks omitted)."[W]here First Amendment freedoms are at
stake,an even greater degree of specificity and clarity of laws is required,and courts ask whether
language is sufficiently murky that speakers will be compelled to steer too far clear of any
forbidden areas."Edge v. City of Everett,929 F.3d 657,664(9th Cir.2019)(cleaned up).
While prohibitions against"making crude gestures or use of foul language"and against
the use of"loud"or"abusive language"are impermissible because they allow for expulsions for
conduct that is not"actually"disruptive,Norse,629 F.3d at 976,they are also unconstitutionally
vague because it is impossible for a member of the public to decipher and determine what types
of conduct the Council or Mayor Burns might decide fit into these categories.It is not clear what
kinds of gestures they might deem"crude"or what type of language they might decide is"foul"
or"abusive."After all,"one man's vulgarity is another's lyric."Cohen,403 U.S.at 25.See,e.g.,
id.at 26("we cannot indulge the facile assumption that one can forbid particular words without
also running a substantial risk of suppressing ideas in the process")(reversing conviction of
individual charged with disturbing the peace by wearing a jacket with the words"Fuck the
Draft"in a corridor of the Los Angeles Courthouse);Duran v.Arizona,904 F.3d 1372,1378(9th
Cir. 1990)(First Amendment protects person making obscene gesture towards,and directing
obscenities at,police officer).
Finally,The Mayor's prohibition against naming individual councilmembers,and his
requirement that all comments be directed to the Council as a whole violates the First
Amendment and the Brown Act.Meetings of the City Council constitute limited public forums.
See White v. City of Norwalk,900 F.2d 1421,1425(1990).In a limited public forum,the
government may enact reasonable restrictions to preserve the space for its intended purpose.
Good News Club v.Milford Cent.Sch.,533 U.S.98,131(2001).The Mayor's prohibition,
however,is plainly unreasonable.Preventing the public from addressing an individual
councilmember directly leads to absurd results.For example,it would prevent a person from
directly responding to a remark made by a particular councilmember except through a needlessly
complicated contrivance.It also ignores the fact that the Council does not always act as a
cohesive body.In the case of a split vote,it makes no sense for a member of the public to
castigate councihnembers who voted in the way the constituent preferred rather than directly
addressing the members of the council who voted the other way.
"Debate over public issues,including the qualifications and performance of public
officials[},lies at the heart of the First Amendment.Central to these principles is the ability to
question and challenge the fitness of the administrative leader of a[government body],especially
in a forum created specifically to foster discussion about[issues within the body's purview]."
Leventhal v. Vista Unified Sch.Dist.,973 F.Supp.951,958(S.D.Cal.1997)(citing Schenck v.Huntington Beach Brown Act
Cease and Desist Letter
May 22,2025 Page 6
Pro—Choice Network, 117 S.Ct.855,858(1997);McIntyre v. Ohio Elections Comm'n,514 U.S.
334,344-45(1995);First Nat'l Bank of Boston v.Bellotti,435 U.S.765,776-77(1987);Buckley
v. Valeo,424 U.S. 1, 14(1976);New York Times v.Sullivan,376 U.S.254(1974).The Mayor
may not impose a prohibition preventing members of the public from engaging in this type of
questioning and challenging of individual councilmembers.
Moreover,the Brown Act itself indicates that the public shall have the right to speak on
"any item of interest...within the subject matter jurisdiction of the legislative body."
Government Code Section 54954.3(a).Critiques of the actions or inactions of individual
councilmembers on issues within the Council's jurisdiction constitute items of interest.
Conclusion and Cease and Desist Demand
The Mayor's threats to remove members of the public who make"crude gestures or use
of foul language,
"or to have them arrested or prosecuted violated the Brown Act,as did his
decision to silence speakers who addressed individual councilmembers by name,including Ms.
Rincon.Additionally any attempt to enforce the Council's published"Meeting Decorum"rules
would violate the Brown Act,the First Amendment to the United States Constitution,and the
Liberty of Speech Clause of the California Constitution.Accordingly,pursuant to Government
Code section 54960.2(a),I hereby notify Mayor Burns and the City Council that the Mayor and
the Council must immediately cease and desist from: 1)warning members of the public that they
may not"make crude gestures"or use"foul language"when they provide public comment;2)
warning members of the public that they may not address individual councilmembers by name
when they provide public comment;3)silencing,muting,or ordering the removal of members of
the public who"make crude gestures,"use"foul language,"or refer to individual
councilmembers by name when they provide public comment;or 4)enforcing the portion of the
Council's"Meeting Decorum"rules that prohibits purportedly"abusive"language,"whistling,
clapping,stomping of feet,repeated waving of arms"as inherently and automatically
"disruptive."
Pursuant to Government Code section 54960.2(b),Ms.Rincon may take legal action if
the City does not respond to this letter within 30 days,providing its unconditional commitment
to cease,desist from,and not repeat the violations described here.In that eventuality,Ms.Rincon
would be entitled to court costs and attorney fees.Id.
Please let me know if you have any questions or would like any additional information.I
look forward to your response.I can be reached via email at jarkovitz@aclusocal.org.
Sincerely,
Jonathan Markovitz
Free Expression and Access to Government Staff Attorney
Cc:Huntington Beach Brown Act Cease and Desist Letter
May 22,2025 Page 7
City Attorney Michael Vigliotta
MVigliotta@surfcity-hb.org
Huntington Beach City Council Meeting June 17, 2025
Agenda Item 16, No. 25-499
Since 2023 the "conservative" members of the city council
have endeavored to silence the voices of the citizens of
Huntington Beach in an effort to implement their
authoritarian MAGA agenda.
In 2023 they dissolved the following boards and committees:
1. The Human Resources Committee
2. The Mobile Home Advisory Board
3. The Environmental Sustainability Board
4. The Smart Cities Technology Committee
5. The Huntington Beach Youth Board
In addition, they also revised the Policy On Human Dignity to
remove condemnation of hate crimes as well as all references
to them. In addition, they eliminated removed the LGBTQ
community from policy, yet inserted a provision specifically
targeting them regarding their sexual identity as well as some
nonsense about sports and "other activities".
During this time citizens were still granted their full allotted 3
minutes of time to comment on agenda items. Once former
councilman Strickland rotated out of the mayoral position,
those following in his place systematically started arbitrarily
limiting speaking times, again limiting citizen input to what
could be blurted out in under 2 minutes. Under Mayor Burns
that time has regularly been limited to one minute, regardless
of the number of speakers.
The council also surreptitiously changed the window to
submit supplemental comments from a deadline of 9 AM on
the morning of a meeting to 5 PM on the evening before the
meeting with no notice whatsoever.
To further limit and constrain citizen input Mayor Burns
declared speakers were now required to refrain from
addressing council members individually and address the
council exclusively as a whole, or the microphone would be
muted and they would be dismissed in favor of the next
speaker.
Several speakers complained and accused him of violating the
Brown Act. He sought the advice of the City Attorney, who
said while the council preferred they be addressed as a whole,
speakers did in fact have the right to address each member
directly.
Mayor Burns ignored this advice and continued to silence
dissenting speakers, resulting in a forthright, well
documented, and richly deserved cease and desist letter from
the ACLU.
So what does the arrogant, willfully ignorant city council
decide to do? They "unconditionally" commit to cease and
desist from and not repeat their illegal actions "without
admitting any violation of the Ralph M. Brown Act."
Laughable if it weren't so pitiful. The Clown Show continues!
Harry McLachlan, HB Resident