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Ninth Circuit Grants Panel Rehearing Regarding Constitutionality of Rules of Decorum for City Council Meetings

On Feb. 25, 2013, the Ninth Circuit Court of Appeals granted a request by plaintiff-appellant Acosta for a panel rehearing of its decision last September in Acosta v. City of Costa Mesa (2012) 694 F.3d 960 (Acosta), which concerns the constitutionality of an ordinance governing rules of decorum at city council meetings.

The Ninth Circuit order went on to withdraw the prior published opinion;  it can no longer be cited as precedent.  The petition for rehearing en banc was denied as moot.  No schedule was provided for briefing or argument.

In Acosta, the Ninth Circuit found that a Costa Mesa ordinance governing rules of decorum at city council meetings to be unconstitutionally overbroad because the ordinance prohibited insolent behavior by someone attending the meeting even if such behavior did not cause a disruption of the meeting.  (Id).

The court struck the offending term “insolent” and upheld the remainder of the ordinance based on a narrowing construction which required an actual disruption of the meeting in order to silence a speaker or remove him from the room.  In reaching this result, the court relied on prior Ninth Circuit precedent, which held that a City Council meeting is a highly regulated limited public forum where government business is conducted, so limitations on speech at such meetings must be reasonable and viewpoint neutral.  (See Kindt v. Santa Monica Rent Control Board (9thCir. 1995) 67 F.3d 266, 270-271; White v. City ofNorwalk (9thCir. 1990) 900 F.2d 1421, and Norse v. City of Santa Cruz(2010) 629 F.3d 966.

In his petition for rehearing, Acosta argued that the Ninth Circuit ignored or misapplied Supreme Court precedent and California law (specifically the Ralph M. Brown Act) which establishes that government meetings that are open to the public are public fora; therefore, restrictions on speech such as those in the Costa Mesa ordinance establishing rules of decorum at meetings are violative of the First Amendment.

Acosta further argued that speech can be restricted in these meetings only by reasonable time, place and manner regulations, as with other public fora.  Acosta also asserted that the court had erred in upholding the ordinance after striking the term “insolent” because it had no reasonable basis based on the facts in the record to apply the a narrowing construction which required an actual disruption of the meeting.

Costa Mesa opposed the petition for rehearing, asserting that the standard applied by the court in upholding the City’s ordinance was consistent with relevant jurisprudence from the Supreme Court and the Ninth Circuit which provides that City Council meetings are not public fora, they are at most limited public fora, such that reasonable, viewpoint neutral restrictions on speech can be imposed.  The City also explained that the Brown Act is consistent with these holdings.  The City cited to portions of the record from the trial court to establish that the court had a strong evidentiary basis for applying the limiting construction of an “actual disruption” to the ordinance.

This will be an important case for municipalities as it could have broad implications for the conduct of meetings and the ability to complete municipal business in a timely and efficient manner.

For more information about this case or other First Amendment matters, contact Deborah Fox at 800.464.3559.