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ACLU of Utah Challenges Censorship and Fees for Speaking at Virgin Town Council Meetings

06 November 2002 Published in Legal Advocacy

The ACLU of Utah challenges censorship of content and fees for speaking at Virgin town council meetings.

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ACLU Challenges Fees for Speaking at Virgin Town Council Meetings

November 6, 2002

Mayor Jay Lee
P.O. Box 790008
101 S. Mill Street
Virgin, Utah 84779

RE: Fee for Speaking at Town Council Meeting

Dear Mayor Lee,

It has come to our attention that the City of Virgin charges citizens a $25.00 fee to speak during the public comment period of Virgin town meetings. We have also learned that some citizens who have paid the $25.00 have been prohibited from speaking because of the content and specifically the viewpoint of their speech. Finally, allegations have been made that assessment of the fee and/or the ability to speak at town meetings is applied in a discriminatory fashion based on a petitioner’s relationship with the mayor’s office. The ACLU of Utah believes these practices violate citizens’ First Amendment rights, as well as Utah’s Open and Public Meetings Act, and are therefore susceptible to a legal challenge. In hopes that unnecessary litigation can be avoided, we offer the following assessment of your policy.

Speech regarding governmental affairs is sacrosanct. The United States Supreme Court has held that speech on political matters and governmental affairs "lies at the heart of protected speech" R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, White and Blackmun, JJ, concurring) and rests "on the highest rung of the hierarchy of First Amendment values" Federal Communications Commission v. League of Women Voters, 468 U.S. 364, 381 (1984). It has also held that "[t]here is practically universal agreement that a major purpose of [the First] Amendment was to protect free discussion of governmental affairs." Burson v. Freeman, 504 U.S. 191, 196 (1992). Therefore, limiting or prohibiting core political speech because of its content is highly suspect and presumed to violate the First Amendment.

By opening town meetings to public discussion, Virgin has created a designated public forum, "a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). Therefore, Virgin must show that the content-based restrictions on speech in town meetings are justified by "compelling" governmental interests and are "narrowly tailored" to effectuate those interests. See, e.g., Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 641-42 (1994).

Additionally, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) stands for the proposition that an ordinance that vests an official with uncontrolled discretion to choose who can exercise a fundamental right is a prior restraint upon the enjoyment of that right. In Shuttlesworth, a regulation permitting decisions to grant or deny a parade permit based on "public welfare, peace, safety, health," was found to be unconstitutional. Similarly, a regulation cannot delegate overly broad licensing discretion to government officials, Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992), because such discretion creates the risk of suppressing speech on particular points of view. "To curtail that risk, ”a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license” must contain ”narrow, objective, and definite standards to guide the licensing authority.”" Id. at 130-131, quoting Shuttlesworth, 394 U.S. at 150-51.

In reports, Virgin claims that the policy of charging the fee and rejecting items from the agenda is done to keep the meetings "positive." Prohibiting speech because it is negative, however, is clearly unconstitutional viewpoint discrimination and will not survive strict scrutiny. We are aware of no standards used to guide Virgin in deciding who is selected to speak at the town meetings, and we suspect this decision is based upon the "positive" nature of the speaker’s message alone. By enacting truly content-neutral time, place, and manner regulations, such as restricting comments to specified time periods, limiting how long people can speak, and imposing noise levels, Virgin can easily advance the acceptable goals of order, civility, and efficiency without unconstitutionally restricting content or viewpoint.

We believe that Virgin’s actions are also in violation of Utah’s Open and Public Meetings Act, which in no way restricts the rights of non-disruptive persons from participating in an open meeting of a public body. The only exception in the statute applies to persons who willfully disrupt a meeting to the extent that orderly conduct is seriously compromised, U.C.A. §52-4-7. Virgin has, in effect, closed town meetings to those who cannot afford the $25.00 fee or to those who raise an unacceptable agenda item, effectively prohibiting them from exercising their First Amendment rights to petition the government and participate in the democratic process. The fee and unfettered discretion to prohibit discussion on certain issues serve as a precondition to attending and participating in the meeting and flies in the face of the intent and purpose of Utah’s Open and Public Meetings Act.

Charging a fee also rests on an assumption that only the speaker benefits from participating in government meetings; but surely the public benefits from its government hearing the views of its constituents are great. Therefore, the Supreme Court generally condemns imposing fees as a condition to the exercise of First Amendment rights. See Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); Jones v. City of Opelika, 319 U.S. 103 (1943). In other First Amendment contexts, fees for free speech permit applications used to defray administrative costs are presumptively valid, but only to the extent that the fees are necessary as a means of offsetting expenses associated with the applications. Cox v. New Hampshire, 312 U.S. 569 (1941); Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992). In this case, there is simply no reasonable way to justify a $25.00 cost for allowing Virgin residents to sign up to speak at town meetings. "[F]reedom of speech ... [must be] available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943).

To conclude, we highly recommend eliminating the fee to speak at town meetings and urge you to enact reasonable and content neutral time, place, and manner restrictions in order to regulate the conduct of the town meetings. I have also requested that Mr. Paul Murphy of the Utah State Attorney General’s Office to formally investigate this situation. Please feel free to contact my office to discuss changing this policy.

Sincerely,

Janelle P. Eurick
Staff Attorney

CC: Mr. Paul Murphy
Utah State Attorney General’s Office
P.O. Box 140810
Salt Lake City, Utah 84114

_________________________

November 6, 2002

Mayor Jay Lee
P.O. Box 790008
101 S. Mill Street
Virgin, Utah 84779

RE: Government Records Access and Management Act

Dear Mayor Lee,

Pursuant to the Utah Governmental Records Access and Management Act, Ut. Code Ann. §§63-2-101 et. seq. the ACLU of Utah formally requests to review all public documents regarding Virgin’s policy for allowing public comment at town meetings. This request is in response to the concerns raised in the attached letter. Specifically, we would like to review the following documents:

 

Any documents, ordinances or policies relating to the charge of a $25.00 fee for participating in the public comment period at a Virgin town meeting

Any documents, ordinances or policies setting forth the standards and guidelines for choosing who can submit public comment at Virgin town meeting

Any documents, ordinances or policies that govern the conduct of Virgin town meetings, the schedule of the meetings and the elected or appointed officials and volunteers that are present at the meetings

Copies of the agenda of the town meetings for the previous 12 months including a list of those persons that paid the $25.00 fee and were allowed to speak at each town meeting

Any documents or records identifying persons who spoke at a Virgin town meeting in the past 12 months who did not pay the $25.00 fee

Any documents or records identifying persons who were denied the ability to speak at a Virgin town meeting in the last 12 months and who either paid the fee and it was refunded or who refused to pay the fee

Any documents or records identifying the total revenue collected by Virgin in the past 12 months from collecting the $25.00 fee for participating in the public comment periods at Virgin town meetings

 

If you have any questions about this request, please contact me. Please bill my office for any reasonable copying charge associated with providing the above information and documents. If the costs exceed $50.00 please contact my office. By statute, we will look forward to your response within ten days from the receipt of this request.

Thank you for you prompt attention to this matter.

Sincerely,

Janelle Eurick
Staff Attorney
ACLU of Utah

Enclosure

_________________________

November 6, 2002

Mr. Paul Murphy
Utah State Attorney General’s Office
P.O. Box 140810
Salt Lake City, Utah 84114

RE: Fee For Speaking at Virgin Town Council Meetings

Mr. Murphy,

The ACLU of Utah is concerned about the reports of a $25.00 fee being assessed to citizens of Virgin, Utah who wish to address their government at open and public meetings. On behalf of our membership, the ACLU of Utah formally requests the State of Utah to investigate this practice. Several members who are extremely concerned about this policy have contacted our office. Please find attached a letter sent to Mayor Jay Lee highlighting some of our concerns and a corresponding Government Records Access and Management Act request. Please contact my office if you have any questions about this request.

Sincerely,

Janelle P. Eurick