(23)AR 041508 Commenting on Election or Campaign Issues from Dais

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G Having said this, we are aware of at least one City which prohibited members of the public from campaigning or electioneering during public comment, but such a policy would be aggressive and would have to be narrowly enforced, since the Brown Act specifically allows members of the public to criticize City policies, procedures, programs or services, as well as the acts or omissions of Council Members. Essentially, it would seem that the prohibition would apply just to specific requests for a yes or no vote. In addition, to the extent that the City Council wishes to consider such a limited prohibition, it presumably could be applied to the Council Members as well. Regardless of the above, however, the Brown Act requires that any comment or response by Council Members regarding the recall be brief, and this is certainly within the City Council's control. It should be pointed out, of course, that the Council Members could also voluntarily elect not to discuss the recall election during their comment period. The use of public resources for campaign or election issues is clearly a delicate and important area of the law, as outlined in the attached document prepared for the League of California Cities in 2003 (Ballot Measure Advocacy and the Law: Legal Issues Associated with City Participation in Ballot Measure Campaigns). DISCUSSION: We will first discuss the First Amendment principles that apply to Council Member speech and speech by members of the public, including a discussion of what at least one city has done to regulate public speech. We will then review how the prohibition against using City funds to take sides regarding a ballot measure applies in this context. COUNCIL MEMBER CAMPAIGNING DURING COUNCIL COMMUNICATIONS The First Amendment to the United States Constitution guarantees freedom of speech. The Supreme Court has refined this protection of free speech by concluding that the scope of these rights depends on the particular setting where the rights are being exercised, establishing three categories of locations for purposes of analyzing First Amendment rights .2 In some areas, such as sidewalks and streets (called "traditional public forums" by the courts), free speech rights are essentially unlimited. In other locations, such as most 2 Perry Education Assn. v. Perry Local Educators'Assn. (1983) 460 U.S. 37, 45. -2- ORANGE\AMORRIS\45551.4