Pensacola, Florida
Tuesday September 23rd 2014

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Viewpoint: Right to Speak

By Jim Messer

As the city attorney, I have the unique privilege of not only experiencing the right to speak firsthand at city council meetings, but also litigating First Amendment issues on behalf of the city. My recent experiences with the right to speak triggered this examination of the legal basis of the right to speak.

During the last several months, speakers at the council meetings have exercised their right to speak in a manner that causes one to question the utility of the debate. Speakers have freely denounced council members as Nazis, threatened their property and limbs, scorned their morals and religious beliefs, called them out by name in “gangsta” style, held them personally responsible for the lives of the homeless, rambled in lengthy, incomprehensible diatribes on any topic of interest and, my all-time favorite, simply stood up and recited a litany of words, which if uttered anywhere else would have resulted in a trip to the emergency room.

These visceral offerings are justified under the rubric of free speech and debate.  They bring to mind the references to the Lincoln-Douglas debates of yesteryear, which are held out to be exemplars of debate. To the contrary, the Lincoln historian, Harold Holtzer points out that “the encounters were brutally sarcastic, featuring highly personal attacks rather than elevated discourse.”

Oddly enough, the only basis for the right to speak is because the Pensacola City Council has voluntarily extended this right to the citizenry during open forum. There is no legal authority for citizens who are not a party to the proceedings to speak and be heard at council meetings.

Neither the Florida Constitution nor the so-called “Sunshine Law” bestows the right to speak. The law is, quite simply, silent as to citizen participation in meetings.

Florida courts have never upheld either a right to speak or participate for a citizen who is not a party to the proceedings.

In the 1993 case of Wood v. Marston, the Florida Supreme Court stated “nothing in this decision gives the public the right to be more than spectators. The public has no authority to participate in or to interfere with the decision-making process.”

More recently in Keesler v. Community Maritime Park Associates, our First District Court of Appeal upheld the CMPA’s denial of a citizen’s opportunity to speak at a meeting concerning the maritime park.

Proponents of the right to speak have introduced legislation that would ensure the public a right to speak.

In an effort to avoid the diatribe, the proposed legislation would also permit reasonable rules to ensure the orderly conduct of a public meeting such as time limits on the speech, procedures or forms that indicate the desire to be heard, position on a proposition, and designation of group representative.

The irony of the situation seems to be that the proponents of the right to speak to their government must defer to that same government to legislate their right to speak. By doing so, they will also have to accept government standards that act to  elevate the discourse they so avidly seek.