The Raleigh City Council will no longer allow residents to address individual council members during public comment periods.
That’s probably unconstitutional, according to a local attorney who specializes in First Amendment issues.
The rule was changed after former Eric Braun, the former chairman of the city’s planning commission, used his allotted time during the public comment period at today’s council meeting to ask why council member David Cox forwarded a series of Braun’s tweets to the city attorney in May.
After the public comment period ended, council member Dickie Thompson made a motion to change the city’s rules of decorum to prohibit citizens from addressing individual council members, rather than the council as a whole. The vote passed unanimously with no discussion, with Mayor Nancy McFarlane and Nicole Stewart absent.
The rule likely wouldn’t hold up in court, says attorney Jonathan Jones, who specializes in free speech law. While the council is allowed to set limits on what topics may be discussed and how long each speaker is given to voice his or her opinion, placing a blanket ban on what can be said is not allowed.
While personal attacks can be prohibited, criticism of individuals is not, Jones says.
“I think fundamentally any rule that prohibits a citizen from directing a comment to a particular public official during a meet would violate the First Amendment,” Jones says. “I think they attempt to enforce that they will be inviting a lawsuit.”
Here’s the state statute regarding public comment periods:
The city attorney did not respond to the INDY‘s request for comment.
When Braun asked Cox for an explanation or apology for reporting his tweets—which criticized Cox’s leadership and linked to INDY articles on Cox’s lone vote against the council’s Code of Ethics, his “screw up” reallocating park funding, and his opposition to a Brentwood sewer line project—he didn’t get a response from Cox, who didn’t respond to the INDY’s inquiry, either.
Council member Corey Branch asked city attorney Robin Tatum Currin if council members have the right to do that, “as far as council members sending emails to you.” Currin said council members copy her on emails “fairly often.” Regarding Cox’s email, Currin said, “There was nothing that I saw that was unlawful or inappropriate about it.”
The beef between Cox and Braun isn’t new. Last year, Cox initiated an investigation into Braun after a heated planning commission meeting where residents from Cox’s district became upset while discussing potential plans for a parcel off Falls of Neuse Road, down the street from where Cox led the charge in killing a proposal to add a Publix grocery store. Braun tried to calm the crowd, perhaps too aggressively, and a week later Cox emailed the city council, the city manager, and interim city attorney seeking an investigation into Braun’s conduct. A subsequent investigation did not substantiate any wrongdoing on Braun’s part.
Six months later, Cox called for an investigation into utilities director Robert Massengill after Massengill refused to reroute a sewer line project onto wetlands. Massengill was also cleared of any wrongdoing.
When addressing the council Tuesday, Braun said Cox never responded to his questions on why his tweets were reported.
“Given the deafening silence, I can only conclude that Councilor Cox had no valid justification and was simply trying to intimidate me,” Braun said. “Social media is an important public forum for citizen engagement, and elected officials must accept that their policy pronouncements and their actions as elected officials will be subjected to public scrutiny, even if harsh and undiplomatic.”
Contact staff writer Leigh Tauss at firstname.lastname@example.org.
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These elected officials sure are acting like big babies. Hopefully they’ll change their mind before being brought to court and wasting taxpayer dollars.
Commissioner Holmes proclaimed something similar during a Wake County Commissioners meeting where a bunch of angry park lovers were about to unload on the Board. It was unconstitutional then, and it is unconstitutional now with the City Council. Political speech is afforded the highest protection according to well-established case law. This is an infringement of our 1st Amendment rights. Throw them all into the Boston Harbor.
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