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PERSPECTIVE: County Supervisors Trample Free Speech Over Rude Comments

Created: 10 November, 2021
Updated: 26 July, 2022
6 min read
Arturo Castañares

The San Diego County Board of Supervisors today passed immediate changes to its rules to restrict public comment times and limit “disruptive conduct” in response to a recent speaker who made offensive comments about vaccine mandates, but their overreaction will only serve to limit free speech and public input on important issues. 

The rule changes will now limit individual speakers to only one minute if more than 10 speakers want to comment on any one item; limit group presentations to only be allowed for land use or adjudicatory matters; and also allow for a consent calendar where multiple items are approved with a single voting action for items when debate is not anticipated without the ability of a member of the public to pull an item for further discussion. 

But the most controversial rule change will now prohibit “disruptive conduct, including but not limited to loud or threatening language, whistling, clapping, stamping of feet, speaking over or interrupting the recognized speaker.”

During last week’s Board meeting, one speakers made disparaging remarks about two Supervisors and called County Public Health Officer Dr. Wilma Wooten “Aunt Jemima”. Wooten is African-American. 

Of course, this was wrong, offensive, and appropriately repudiated by the Supervisors, but it was not unlawful speech. 

Supervisor Nora Vargas stopped the speaker dead in his tracks, and even used an expletive herself in saying she would not allow the racist comments on her “fuckin’ watch.”

The rule changes were passed with only three votes with Democratic Supervisors Nathan Fletcher, Nora Vargas, and Terra Lawson-Remer in support. Republican Supervisor Joel Anderson opposed the changes and Republican Jim Desmond was absent from the meeting. 

Some critics of the rule changes question whether they are constitutional as government restrictions on public comments, especially during open comment periods before governmental agencies, could run afoul of First Amendment protections. 

Hate speech has long been protected under the First Amendment, especially when directed at government officials. 

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The US Supreme Court has upheld protections as long as the comments do not incite immediate violence or harm. Of course, you can’t yell “FIRE” in a crowd and cause a stampede, but you can chant “Fuck Joe Biden” on national TV and create an instant viral meme.  

None of the comments made last week, or at any local meeting, were life-threatening or inciting violence. 

The comments were racist, rude, insulting, derisive, ignorant, foolish, uninformed, some even unintelligible, but they should not be banned simply because they are hard to listen to or objectionable. 

The new rule changes that prohibits “whistling, clapping, stamping of feet, speaking over or interrupting the recognized speaker” are ostensibly aimed at maintaining decorum and civility, but such ferment or enthusiasm should be expected when important decisions are being made which affect people’s lives. 

The new rules define “Discriminatory or harassing remarks” as including “legally protected speech in a Board meeting that disparages an individual or group based on their perceived race, religion, sexual orientation, ethnicity, gender, disability, etc. or other hate speech but does not rise to the level of a criminal threat or inciting violence.”

The language actually admits that this sort of speech is protected, yet goes on to restrict anyone who disparages others, depending on a broad range of criteria and the subjective determination by the Chair of the Board.

Under the new rules, for example, someone who criticizes White privilege, racial biases in policing, or inaction toward discrimination based on sexual identity could potentially be censored or thrown out of a public meeting, leaving the decision solely up to the discretion of the Chair.

The language leaves the definition open to include “etc. or other hate speech” without defining exactly what that may include.

Lastly, the new language is contradictory in that it states that the Chair “may” take action, then says the Chair “shall, at the Chair’s option” read the County’s “Policy Against Discrimination and Harassment”, which is a workplace policy toward employees, not a restriction against public comments.

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Not only are these changes ill-advised; they’re not even well written.

Policies defining access to public meetings and setting guidelines for decorum should be concrete, clear, and not left to the subjective determination of one person. No one should even want that level of responsibility, unless they’re just looking for trouble -and lawsuits.

City Councils and County Boards of Supervisors have always tolerated long lines of speakers anxious about local laws or programs important to them. Long meetings are just part of the job of governing. 

The interaction between the public and elected officials is at the very heart of our representative democracy. 

And what allows the public to inform, challenge, and even criticize our elected officials is our freedom of speech enshrined in the Constitution’s First Amendment. 

Remember, the First Amendment is not meant to protect us from each other or even our employers; it is only a check on government attempts of “abridging the freedom of speech… or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” We are free to -and even expected to- speak up to any government official, from the President to our local City Council and, yes, our County Supervisors, too.

The government should never restrict access to the people’s business being carried out by our elected representatives, unless the speakers, of course, are advocating physical harm to others, but those laws already exist. 

The San Diego County Board of Supervisors -especially our Democratic members- should tread carefully when taking actions to restrict public comments.

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Democratic -with a small “d”- means tolerating seemingly-intolerable speech in order to protect our own freedoms.

Democrats have fought too long for access to the system to now be the ones imposing restrictions with their new found majority power.

We would cheer the County Board for taking quick action to reverse themselves, but, under their new rules, whistling, clapping and stamping of feet is not allowed. 

We hope that changes soon. 

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