CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
10/9/2023
1 SUBJECT:
Hate Speech and Remote Public Comment during City Council and Planning Commission Meetings
RECOMMENDED ACTION:
Discuss the recent occurrence of hate speech through remote public comment during the September 25, 2023, City Council meeting and provide direction to the City Manager regarding remote public comment procedure changes.
STAFF CONTACT:
Kevin Woodhouse, City Manager
650-738-7409
[email protected]
INTRODUCTION:
As a result of the harmful and disruptive impacts from the occurrence of hate speech through remote public comment during the September 25, 2023, City Council meeting, Mayor Bigstyck and other members of the City Council separately requested this study session be agendized to discuss this incident and the City’s path forward. The City of Pacifica stands united against hate. There is no place for hate in the City’s Mission, Vision, and Values for the community or the city organization. What occurred on September 25th, hate-filled speech behind the anonymity of technology that allows remote public comment, was harmful to the community, city staff, and the City Council and disruptive to the meeting. However, such speech in a City Council meeting is also afforded protections under the First Amendment, as described in more detail below. The commenters who delivered the hate speech are technologically adept with remote comment technology, know their rights, are well-organized in their efforts to disrupt democracy, and achieved such disruption and harm on September 25th, as well as at many other public meetings in our region recently.
The fundamental question before the Council tonight is whether the ultra-convenience of public comment from one’s living room is worth even one second or a small chance that a white supremacist outside of this community gets in their hateful comment and the harm that causes.
There is not an easy answer for the Council in balancing the values of public engagement and protected speech rights. For years and years there have been successful means for robust public comment and engagement leading to quality public policy decisions through in-person and written engagement. Then came the recent pandemic, combined with technology advances that allowed remote public comment, and as a result a post-pandemic citizenry having grown accustomed to the convenience of new technologies and most cities in our region implementing hybrid meeting technology to allow remote public comment. However, technologies can be abused, and when the avenues for such abuse become apparent, as in this case of white supremacists commandeering Zoom technology, changes are essential. In this case, robust public comment and engagement can continue without Zoom, yet harmful anonymous hate speech needs Zoom or remote phone comment to achieve their goal to viscerally impact communities and individuals by engendering hate. While there may be strategies, as described Pacifica City Council 2
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in more detail below, to minimize the harm and disruption of hate speech, as long as Zoom or remote phone comment avenues exist, the First Amendment will allow anonymous hate speech to occur. To balance the Council’s goals of both providing robust public engagement and looking out for the health of the community and employees, which are both priorities in the City Council’s Strategic Plan, the City Manager recommends there be a temporary suspension of remote public comment, similar to what other agencies in our region are doing.
BACKGROUND/DISCUSSION:
Recently, jurisdictions throughout the Bay Area, including the City of Pacifica, have received a number of public comments through the remote access option (Zoom or some other remote access platform), which make antisemitic, white supremacist and anti-LGBTQ+ statements (“Off-topic comments”). These Off-topic comments are often referred to as “hate speech.” Although extremely difficult to listen to, “hate speech” is still speech that is afforded protections under the First Amendment of the U.S. Constitution and California Constitution. Courts have held that the council chambers of a city are a limited public forum, with regulations allowed related to “time, place, and manner.” While a city may adopt reasonable regulations to govern the conduct of a public meeting, care must be given to ensure that the regulations themselves do not violate the public’s freedom of expression by constituting a barrier to providing comments or a “prior restraint” on expression.
In terms of conduct during a meeting, courts have found that the First Amendment allows a hateful speaker their room to express their opinions unless and until the speech “disrupts” the meeting. For example, in Williamson v. City of National City, 23 F.4th 1146 (9th Cir. 2022), the court validated the removal of persons who were lying prone on the floor making it impossible to continue the meeting. In these instances, if their speech disrupts the meeting such that the Council can no longer perform the tasks of the meeting, then they can be removed. On the other hand, in Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010), the removal of a commenter who made a Nazi salute was invalid because simply saluting was not a “disruption” of the meeting and therefore his removal violated his right to free speech. The court defined “disruption” as an action that “actually disrupt[s]” and not merely distressing.
In California, the Ralph M. Brown Act applies to meetings conducted by local public agencies to ensure that the public has the opportunity to view and participate in meetings of legislative bodies. The Brown Act requires public meetings to provide the public with the opportunity to comment on the agenda items. At a regular meeting, the public must be able to address the legislative body on “any item of interest to the public, before or during the legislative body’s consideration of the item, which is within the subject matter jurisdiction of the legislative body.” The Brown Act also authorizes a legislative body to adopt reasonable regulations to ensure that the intent of the provisions relating to this public comment requirement are followed, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on individual issues and for each individual speaker.
In 2022, SB 1100 was signed into law which revised the Brown Act to authorize the presiding member of the legislative body conducting a meeting to remove, or cause the removal of, an individual for disrupting the meeting. Generally, the new law requires removal to be preceded by a warning to the individual by the presiding member of the legislative body or their designee that the individual’s behavior is disrupting the meeting and that the individual’s failure to cease their behavior may result in their removal. “Disrupting” is defined as engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes, but is not limited to, one of the following: (1) a failure to comply with reasonable and lawful regulations adopted by a legislative body pursuant to Section 54954.3 or any other law; or 2) engaging in behavior that constitutes use of force or a true threat of force. However, both the Brown Act and First Amendment, allow restrictions on Pacifica City Council 3
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speech which is not related to an agenda item or about a topic that is not within the subject matter jurisdiction of the legislative body.
The City must conduct all of its public meetings in a manner that is consistent with the foregoing First Amendment rights of speakers, the Brown Act and other relevant regulations such as the City Council’s adopted City Council Rules and Code of Ethics.
ANALYSIS:
In response to this flood of “hate speech” statements being provided via remote access public comment, a number of public agencies have decided to terminate the remote access option but allow in-person or written public comments. In San Mateo County: Burlingame, Redwood City, San Bruno, and South San Francisco have all terminated remote access for public comments.
Daly City had discontinued remote access public comments prior to the recent “hate speech” incidents. Some cities such as Daly City and Burlingame provide for the option of reading written public comments received by email aloud at the meeting, subject to similar limitations for individual speakers and/or parameters as defined in the meeting agenda, in addition to receiving verbal public comments in-person at the physical meeting location. Some cities such as Atherton, Belmont, Brisbane, Half Moon Bay, Millbrae, and San Mateo are currently continuing to allow remote access public comments, but many have implemented procedures with more prominent statements regarding the limited public forum and rules to stay on-topic or within subject matter jurisdiction of the city in public comments and the Council’s rules for public decorum. However, San Mateo implemented this practice at the October 2, 2023, City Council meeting and still experienced significant disruption of the meeting by off-topic comments categorized as hate speech, even when commenters were muted after receiving sufficient warnings regarding off-topic comment. Additional cities such as Belmont, Millbrae, and San Carlos are in the process of determining if and how their current hybrid meeting practices may be adjusted; for some, staff will lead the process and for others the City Council is anticipated to provide direction at a future meeting. At a recent City Council meeting, the Burlingame City Council directed that City staff may have the flexibility to make determinations with respect to suspension of remote access public comment; the determination was subsequently made by the City Manager in consultation with the City Clerk to discontinue remote access public comment.
Similarly, Atherton has determined that City staff will lead the process of determining if any process modifications may be necessary for meeting participation and how public comments may be made.
In Pacifica, the City Manager, in consultation with the Mayor, determined that the remote access option for the Planning Commission meeting on October 2, 2023, should be temporarily suspended, as well as for the October 9, 2023 City Council meeting. The suspension of remote access is intended to allow the full Council to discuss the issue of hate speech and options for addressing comments that are clearly off-agenda topic or outside the subject matter jurisdiction of the Council.
Remote Public Participation via Zoom
City staff, working with Pacific Coast Television, completed improvements to the meeting technology capabilities in the Council Chambers to allow a hybrid meeting format on the Zoom platform during public meetings. This hybrid meeting format allows the public to access City Council and Planning Commission meetings remotely to provide public comment during the meeting through the Zoom platform or to attend the meetings in-person and provide public comment at the meeting location. Public agencies are not required to provide remote access for public comments except for instances when a member of a legislative body is participating remotely under the just cause or emergency circumstances provided in Assembly Bill (AB) 2449. Thus, offering this option to the public is within the discretion of the City, except in those Pacifica City Council 4
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cases when an official wants to participate remotely under AB 2449.
The most significant benefit to the remote access option for public comment is the access it provides to those members of the public who cannot otherwise attend the meeting. Along with providing additional access to meetings, there is an increased risk of receiving these public comments filled with antisemitic, white supremacist and anti-LGBTQ+ statements. These hate filled off-topic public comments impact not just the community but City staff members as well.
Strategies for Addressing Off-Topic Comments During Remote Participation via Zoom If the Council desires to continue to allow remote participation via Zoom, there is no guarantee that the community, staff, and the Council will not be harmed in the future by a recurrence of hate speech via remote public comment. While there are some strategies, summarized below, that can be deployed to minimize the duration of off-topic comments or comments that are not within the subject matter jurisdiction of the Council, even mere seconds or utterances of single words can be immeasurably damaging. The following strategies could be considered to somewhat help, if the Council is inclined to prioritize the convenience of remote public comment for community members over the harmful impacts of hate speech.
Potential Procedural Strategies
At this time, staff has identified the following three potential procedural strategies:
1. Temporarily move public comments on non-agendized items to after the Consideration Items on the Agenda. This agenda order change could potentially decrease the number of community members exposed to hate speech; however, it would not change the impact to staff and Councilmembers;
2. Limit the entire time for oral communications to a set period of approximately 30 minutes. While this time-limit could assist with limiting the number of off-topic comments during oral communications, it would not address those public comments being provided under specific agendized items.
3. Implement procedures to require a cut off time to accepting public comments remotely.
Instead of allowing speakers on Zoom to raise their hands at any time during the public comment period, the Clerk could give a specific time within which speakers on Zoom must indicate they want to speak to allow a much more streamlined public comment period.
Unfortunately, the Brown Act prohibits the City from demanding that speakers provide their names (or other information), complete a questionnaire, or otherwise fulfill any condition precedent to attendance. (Govt. Code § 54953.3). Thus, the City Clerk could not pre-screen or otherwise require self-identification prior to speaking.
Warning System
Several cities have implemented a warning system that could reduce the time the Council, staff, and community are subjected to these Off-topic comments. The Mayor could make a statement at the beginning of oral communications highlighting that the meeting is a limited public forum and that all comments must be either within the subject matter jurisdiction of the City if related to a non-agendized item, or on topic if related to an agendized item. The warning would then state that if this directive is ignored following a warning by the Mayor, after consultation with the City Attorney, then the Mayor will direct the Clerk to turn off that speaker’s microphone and mute the speaker.
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As noted above, this system has limited effectiveness because a speaker will have already verbalized their comments before being warned that their hate speech is off-topic, and would likely continue to verbalize such while being warned before being muted.
Continued Use of Zoom Platform to Observe Meetings
If the remote public participation option is terminated, the City Manager recommends continuing to use the Zoom platform for the public to view the meeting over the internet. This would provide the public with one more choice of options to view the meeting, in addition to allowing remote participation of City staff, City consultants, special presentation participants, and Councilmembers in accordance with state law.
ALTERNATIVE ACTION:
None identified, as the Council is being asked to discuss whether any alternative should be implemented for remote public comment procedures.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
This Item relates to the following City Council Goals:
05 Broaden public communications and collaboration: Increase communications, education, and connections for community mental health resources.
FISCAL IMPACT:
While there is staff time associated with the hybrid meeting format, there is no direct fiscal impact other than staff time as a result of any change to remote public participation.
ORIGINATED BY:
City Manager's Office
ATTACHMENT LIST: