Did the City of Tulsa Violate the First Amendment?

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Did Tulsa city attorney David O’Meilia and City councilor David Patrick violate the First Amendment when they prevented Mike Workman from speaking during last Thursday’s city council meeting?  An editorial in today’s Tulsa World describes what happened:

Mike Workman, a regular at council meetings and an announced candidate for state labor commissioner, had asked to address the council on "the Dewey (Bartlett) deception, the Dewey double-down dodge, and the Dewey debris delay debacle" during untelevised public comment portion of last Thursday’s meeting. With sufficient advance notice, members of the public can list agenda items for that part of the meeting.

City Council Chairman David Patrick pulled Workman’s item from the agenda because O’Meilia objected that it was vague and therefore violated the state Open Meetings Act.

Workman then signed up to speak on Bartlett’s reappointment of trash board Chairman Randy Sullivan. As he began to speak, Workman referred to his pulled agenda item. O’Meilia and Patrick quickly shut him down. Patrick told him he needed to confine his comments to the reappointment, but when Workman tried to speak again, he was escorted from the room.

The World article is available here.

The Oklahoma Open Meetings Act is designed to adequately inform the citizens about what government is doing or intends to do at a meeting of a public body.  Consequently, government entities must post agendas in advance that  must "be worded in plain language, directly stating the purpose of the meeting… [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." Andrews v. Independent School District No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929.

Workman is not a "public body" subject to the provisions of the Act, nor is there evidence that he was asking the City to consider or take any action.  Further, because Workman was attempting to speak during the public comments portion of the meeting, it is unclear how the "vagueness" provision of the Act would apply to his comments.

However, setting aside application of the Open Meetings Act, what occurred at the council meeting raises a more troubling question:  do the actions of O’Meilia and Patrick represent an unconstitutional prior restraint in violation of the First Amendment?

The answer to that question may turn on how the First Amendment treats a city council meeting.  Under precedent from the Tenth Circuit, it is not entirely clear whether a city council meeting should be treated as a "designated public forum" or a "limited public forum."

A "designated public forum" is created when the government "intentionally open[s] a nontraditional public forum for public discourse." Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998). The government’s action in excluding a member of a class to which a designated forum is made generally available is subject to strict scrutiny. Id. A "limited public forum," on the other hand, "arises where the government allows selective access to some speakers or some types of speech in a nonpublic forum, but does not open the property sufficiently to become a designated public forum." Summum v. City of Ogden, 297 F.3d 995, 1002 n. 4 (10th Cir.2002). Any government restriction on speech in a limited public forum must only be reasonable in light of the purpose served by the forum and be viewpoint neutral. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

Here, it appears that O’Meilia and Patrick excluded Workman from the meeting and prevented him from speaking based upon the content of his speech.  Excluding someone from speaking based upon the content of their speech is not viewpoint neutral and would possibly violate the more lenient constitutional standard.

If you have questions about the Open Meetings Act, or rights protected by the First Amendment, contact the attorneys at Bryan & Terrill Law, 918-935-2777.

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