Request for First Amendment Clarification

Jan 19, 2021 | City Council

I added a resolution to our 1/19/21 Council agenda requesting that a legal memo be prepared – for the benefit of the public – on the topic of Constitutional First Amendment rights and our Council Rules regarding public comments.

DC-8 (21-0100) Resolution Requesting Legal Memo for Public Release

Below are remarks and explanation that I prepared ahead of that meeting.

This resolution is asking our legal department to share advice about Council Rules and First Amendment rights in the context of our meetings. I am specifically asking for advice that would be appropriate and useful toward the public’s understanding of this issue.

My original draft of this resolution explicitly referenced Rule 7 (“Addressing Council during Meetings”), under the section “Disorderly Conduct at Meetings”, which reads:

Disorderly Conduct at Meetings

“The Chair may call to order any person who engages in personal attacks, (which are unrelated to Council Business) who uses obscene or grossly indecent language, who speaks longer than the allotted time, who disrupts the proceedings or who otherwise violates the rules of this Council. Failure to come to order may result in the microphone being shut off, the forfeiture of any remaining speaking time, or, at the request of the Chair, expulsion from the meeting.

Furthermore, if a speaker or a member of the public does not follow applicable rules during a Council meeting, disturbs the peace at a Council meeting or endangers the safety of the Council or the public at a council meeting, that individual may also have further restrictions placed upon them as necessary, including forfeiture of their right to speak at or right to attend future Council meetings. Such actions are to be determined by Council and shall be consistent with the Michigan Open Meetings Act.”

(Link to Council Rules last updated 12/21/2020:

City Attorney Postema asked me to remove any reference to Rule 7, because he said this particular rule was inadequate and in need of re-crafting. Mr Postema told me that it has remained in our rules, despite shortcomings, because until recently, we haven’t seen this particular problem of Disorderly Conduct. We might ponder how and why we find ourselves in this particular situation.

A few people have pointed out to me that what I am asking for in this resolution is not likely to produce much explicit guidance. It’s true that First Amendment rights, time and place restrictions, are complicated. It’s worth noting that some of the most significant caselaw around free speech and political expression happened during the period of the Vietnam War and the Civil Rights movement. Our modern understanding of the First Amendment was influenced by people who protested gross racial injustice, death, and war. First Amendment rights are legitimately and appropriately broad because of serious, substantive injustices.

Setting aside the legal issue of what speech can and cannot be restricted, it’s worth asking: why does anyone in Ann Arbor believe that these meetings about local issues and policies around sidewalks and bike lanes and water rates, are a reasonable forum for “personal attacks, obscene or grossly indecent language”? Why does anyone in our educated city believe that “personal attacks, obscene or grossly indecent language” make sense as part of local political debate? I think all of us have seen how rage, anger, and resentment is weaponized in politics at higher levels, so the question is why we would welcome it here.

I think there’s a value to whatever legal opinion comes out of this resolution. If we get a broad definition of what is permissible, I’m curious to see how people respond to that information, if it validates and promotes more hostility in public meetings, targeting specific Council Members with personal attacks. Perhaps the weaponized rage has to get a bit uglier and more of our community needs to see it. Perhaps we need to reach a tipping point before every member of this body feels an obligation to directly confront it and reject it.

If the response from our legal department clarifies that we can craft rules around specific categories of disorderly or offensive conduct, that’s an opportunity for the community to contemplate the value of that. It happens that several of us have a personal interest in this because of how we have been targeted privately with threats. Whether or not this is of any concern to our colleagues, I think it should be concerning to residents.

Remarkably, this request for a legal memo has been characterized as “pro-censorship.” Presumably, that idea is repeated for the benefit of people who might not go to the trouble of actually reading the resolution. This resolution asks for a legal opinion from an apolitical legal authority, for the benefit of the public, on a topic that is relevant to the public. That’s all. This week, someone dismissed the public interest of this topic, while reminding the public about which specific Council Members should be targeted with anger. I believe we can do better than that.

One technical point: this resolution is entirely separate from work being done by the Administration committee to redraft new rules — new rules which, so far, are aimed at limiting and restricting discussion and debate among Council Members. There is a compelling need to make some framework of information and understanding available to the public sooner rather than later. This resolution intentionally leaves a lot of discretion on the part of the legal department— this is not an overly burdensome task insofar as our attorneys can offer as much or as little detail as they want.

Frankly, the rhetoric and argument I have seen against this resolution – twisting and distorting the actual meaning of it – has highlighted and underlined why I wrote it, why there is a need for more public information, and why there should be a more informed community conversation on this topic. I hope that Council can find a way to support it, but if this resolution is rejected, I think that’s also a meaningful statement about our values. Support for this resolution is pretty clearly about transparency and community conversation. While I recognize the effort to distort it into something else, I urge my colleagues to reconsider that tactic and talk about what it actually is.