Wednesday, August 5, 2015

Gloucester Township Council suppressed citizen's speech, apparently based on its content.

During its July 27, 2015 public meeting, the Gloucester Township (Camden County) Council voted to end the public comment portion of the meeting for the stated reasons of one speaker's comments not having "something to do with government" and for not being sufficiently "respectful to others."

The video of the meeting shows that resident Tom Crone, a Republican, began addressing the Democratic-controlled Council at 28:15 on the video.  At about 41:40 Crone began speaking as spokesman for the Gloucester Township and Camden County Republican parties about "an unwholesome and unsavory incident . . . that involved" officials from Council Vice President Orlando Mercado's and his running mates' reelection campaign.

Mercado immediately challenged the propriety of Crone's comments as not being "government related."  When Crone defended his comments as being "government related," Mercado stated that Crone had gone over his time limit for speaking.  After Crone sought a ruling from Council President Glen Bianchini as to whether he should prevented from commenting further, Mercado made a motion to close the public portion of the meeting.  That motion was seconded and ultimately passed by the Council.

N.J.S.A. 10:4-12 of the Open Public Meetings Act (OPMA) requires municipal governing bodies and school boards to set aside a period of time at each meeting "for public comment on any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality or school district."  Crone's comments were offered during that portion of the meeting.

The Gloucester Township Council objected to Crone's comments on two grounds: Lack of respectfullness and not pertaining to a governmental issue.  In 2010, the New Jersey Supreme Court issued a ruling in the case of Besler v. Board of Educ. of West Windsor-Plainsboro Regional School Dist., 201 N.J. 544 (2010).  That case concerned a First Amendment lawsuit filed against the local school board by a commenter who was prevented from speaking during a public comment period at a public meeting.

The court noted on page 575 that "the public comment period was a time for citizens . . . to make known their opinions to their representatives, and to petition for redress of grievances” and that citizen comments may be "vehement, caustic, and sometimes unpleasantly sharp attacks."  The court further noted that "free speech is not for the fainthearted" and that "[public] officials must be thick-skinned enough to tolerate the uninhibited and robust debate on public issues that the First Amendment demands."  So, it appears that Bianchini's ruling, to the extent that is suppressed all but "respectful" comments would not survive a First Amendment challenge.

Turning to the Council's claim that Crone's comment did not sufficiently "pertain to a governmental issue" it seems to me that speech related to a sitting Council member's alleged participation in "criminal conduct" is sufficiently tethered to public affairs to be a "governmental issue" under the OPMA.  Mercado's alleged decision to involve himself in criminal or unsavory conduct could very well cause citizens to want to publicly question his fitness to hold office.  Moreover, I don't believe that it is tenable for the Gloucester Township Council, given that its own members are the ones likely to be criticized, to establish itself as the arbiter of whether comments pass the "governmental issue" test.

The Supreme Court, in Besler, noted that while a public body may "may control its proceedings in a content-neutral manner," the law burdens the public body with "showing that its restriction of speech in a public forum was done for a constitutionally permissible purpose."  From my view of video, the Council's decision to close the public comment period was grounded not on Crone having exceeded the time limit or upon other neutral reason, but precisely because Mercado and the Council did not like the content of his speech. Council President Bianchini conceded as much when he stated at 51:06 that he is "not going to allow political talk to continue here.  If it has something to do with government, I'll allow it."  He then affirmed that he has "never been one to hold to the clock and ]that he] won't hold it unless its not going to be proper.  Bianchini then stated that comments that "were not respectful to others" will not be allowed.

I contend that Crone's speech was suppressed for an impermissible reason, i.e. it was not speech that the Gloucester Township Council wished to hear or have the public hear.  As the court noted, a public body “may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views."

Also of note is that the Council's decision to close the public comment period may have violated the rights of people who wished to speak

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