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

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private property (also known as "non-public forums") there are few free speech guarantees. The third category is known as a "limited public forum," and consists of places that a government agency has designated for free speech for a particular purpose. Both the federal appeals court with jurisdiction over California and the California Attorney General, have concluded that City Council meetings fall into this category.3 In a limited public forum, the only free speech rights that are protected are those that are consistent with the nature of the area or facility and consistent with the government's intent in designating the area or facility as a limited public forum .4 Although First Amendment rights at public meetings are often thought of in the context of allowing members of the public to speak, courts have explained that members of local legislative bodies (such as the City Council) also enjoy First Amendment rights at meetings. The California Legislature has acknowledged that free speech rights during City Council meetings are not unlimited, by enacting two provisions of the Brown Act. First, Government Code Section 54954.3(a) reflects this idea by requiring government agencies to allow speech during meetings that is limited as follows: "Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public ... that is within the subject matter jurisdiction of the legislative body. ..."5 An argument in favor of restricting speech concerning the recall is that the recall does not fall within the City Council's jurisdiction, but is instead an issue for Colton's voters to decide. On the other side is an argument that the impact of the recall will certainly affect how the City Council conducts its business, both because it may lead to a change in the makeup of the Council, and also because it will help Council members gauge the mood of the voting public concerning the City issues that form the stated basis for the recall drive. Second, Government Code Section 54954.3(c) prohibits the City Council from adopting rules that "prohibit public criticism of the policies, procedures, programs, or services of 3 White v. City of Norwalk (9' Cir. 1990) 900 F.2d 1421, 1425; 78 Ops. Cal. Atty Gen. 224 (1995). 4 Kreimer v. Bureau of Police (3`d Cir. 1990) 958 F.2d 1242. 5 The City Council can also establish reasonable, viewpoint -neutral rules to ensure that the City's business can be conducted during meetings, such as by limiting the amount of time that each speaker can speak or by removing people who are disrupting the meeting. -3- ORANGE\AMORRIS\45551.4