City council debates freedom of speech, rejects 2 proposed restrictions

By Tim Perry

The members of the Sedona City Council refused to approve proposed changes to the council’s rules of procedure at their March 28 meeting on the grounds that the modifications would interfere with freedom of speech.

City attorney Kurt Christianson proposed three significant alterations to Rule 6, which deals with residents’ interaction with the council. The first amendment, to Rule 6.A.1, would have specified that subjects addressed by speakers during the public forum would have to be “within the jurisdiction of the council.”

The second amendment, to Rule 6.A.3, would have struck out the three-minute standard time limit for speakers and prohibited advocacy for or against any candidate or ballot measure. The third amendment, to Rule 6.B, would have added language stating that “members of the public shall not engage in disorderly, disruptive, disturbing, delaying or boisterous conduct, such as, but not limited to, handclapping, stomping of feet, whistling, making noise, use of profane language or obscene gestures, yelling or similar demonstrations, when such conduct substantially interrupts, delays, or disturbs the peace and good order of the proceedings of the council.”

Council members were not persuaded of the need for all of these changes. Councilman Pete Furman described them as unwarranted.

“I would rather be on the side of free speech than not,” Furman said.

“I find Councilor Furman’s argument for free speech to be compelling,” Councilman Brian Fultz agreed.

“Our citizens think everything’s in our jurisdiction,” Councilwoman Jessica Williamson said, addressing the proposed change to Rule 6.A.1. “The airport’s in our jurisdiction. ATVs weren’t in our jurisdiction, yet we’ve certainly embraced doing something about them, so I’m not sure that I think this is needed.”

“People are going to talk about whatever they want to talk about,” Councilwoman Melissa Dunn commented.

“I’d rather spend three minutes listening to them than spend two and a half minutes trying to cut them off,” Mayor Scott Jablow said.

“This is a problem that doesn’t exist,” Vice Mayor Holli Ploog said.

The council elected to preserve the addition of language to the rule reminding speakers to address their remarks to the council as a whole, but rejected the imposition of a content limitation.

Council also found the language of the second proposed alteration to the rules to be unacceptable, although Christianson argued that it was necessary to conform to state statutes prohibiting the use of city property for electioneering.

“I do not agree with Rule 6.A.3,” Councilwoman Kathy Kinsella said. “I think this is a forum for people to get up and speak about ballot measures, especially because some of them are city ballot measures … I want to know where the public stands on state ballot measures … I think this limits speech. I do not support this additional language.”

“I am really opposed to this, and I do not believe that a court is going to hold us accountable for a member of the public who comes up and speaks for three minutes, who has a right to free speech,” Ploog said.

“I would rather lean toward allowing it than cutting it,” Jablow said.

By consensus, the council decided to reject the new language.

The proposed changes to Rule 6.B, which would have involved the insertion of two new paragraphs, prompted more discussion and a somewhat different approach from council.

“Tighten that language up,” Furman suggested. “Don’t have that list.”

He argued that the language of 6.B.1, governing residents’ behavior, should be as similar as possible to the language of 6.B.2, governing council members’ behavior.

“I like the image of us having an equal playing field. I actually think the city council should be more limited,” Furman said.

Christianson explained that he had used the language from an ordinance of Costa Mesa, Calif., that had been found to be constitutional by the Court of Appeals for the Ninth Circuit in Acosta v. Costa Mesa in 2013. He described the inclusion of a list of prohibited actions as “a bit of a warning to the public … it’s always going to be a case-by-case basis.”

“I support this language change because it makes it clear that it’s only when the conduct disturbs,” Kinsella said. “It clarifies that if somebody does clap, it’s OK.”

“I don’t read it that way,” Furman said. “I think the public would interpret this as we’re telling them they can’t clap.”

Williamson said allowing nonverbal expression at council meetings could lead to proponents of minority views being “booed and hissed,” but acknowledged that such a concern was “overruled by the intent of free speech” and expressed support for Christianson’s choice of language.

“The notion of erring toward free speech has come up multiple times,” Fultz said. “I support Kurt’s assertion that following the Circuit Court language specifically is sufficient.”

“I believe, based on what I’ve heard out of this discussion, that this council wants to increase its commitment to freedom of speech, and I’m very confident with what we have in place right now,” Fultz added.

Furman agreed to accept the language approved by the Ninth Circuit, but reminded the council that the mayor also has the latitude to manage meetings as he sees fit, after which the council voted to accept the proposed changes to Rule 6.B.

The council also approved a modification to Rule 4.A.4.f.1 that brings the city into compliance with state law by removing the mayor’s power to order the closing of any business during a state of emergency.