It made national headlines when Surprise mom Rebekah Massie was arrested at a city council meeting in August. She had been speaking against an agenda item to raise the salary of the city attorney when Surprise Mayor Skip Hall told her she was violating the rules for public comment and asked an officer to escort her out.
Massie was later cited for trespassing and faces class 1 misdemeanor charges for obstructing government operations and resisting arrest.
Now she’s filing a lawsuit along with the Foundation for Individual Rights & Expression (FIRE) — a free speech advocacy group — against the city, the mayor and the officer who arrested her. They’re specifically challenging the policy the mayor stopped her for, which doesn’t allow for complaints about specific city employees during public comment periods.
To put it into context, The Show brought in a First Amendment expert Gregg Leslie, executive director of First Amendment Clinic ASU.
Full conversation
GREGG LESLIE: Well, it’s funny because my first reaction is, “Yep. This is another example of First Amendment rights not being fully fleshed out when it comes to interacting with the government.” Governments have a right to say nobody could speak at this hearing. But then once they say “Yes, we’ll have a public comment period.” they can’t discriminate based on your viewpoint or the content of your speech.
So they create a limited public forum and then they don’t realize that they’re limited in how they can regulate that. So we see these controversies fairly regularly around the country, where legislators feel that, or council members feel that they created that right, so they can turn it off and turn off the microphones anytime they want. And that’s not true.
LAUREN GILGER: That’s so interesting. So they could just not have it at all. But if they’re going to have it, certain rules apply. What do you make of the rule that in this particular case, this woman was accused of breaking, which is kind of like a ban on people talking in these meetings with complaints about specific employees or about specific members of the body? What do you make of that?
LESLIE: Well, it’s funny because you always want to know what prompted a rule like that, because with some city councils, it could be they got tired of people coming in and saying “When I waved at my garbage man this morning, he didn’t wave back, so he should be fired,” you know? And so you can see frustration building on something like that.
But otherwise I’m not sure why you would ban discussions of public employees. And in this context, particularly when the person's salary was on the agenda as a matter to be discussed by that body, and you let her speak for two minutes and cut her off before she could speak for three minutes — it just doesn’t make sense.
Somebody just got an idea that, “Hey, we can stop her from talking,” and no purpose was served by that. I think they should have let her go on.
GILGER: So I think this gets at a broader idea here, which is about sort of what public comment is supposed to mean in local government in particular. What is it supposed to be for? You said they don’t even have to have it.
LESLIE: Right. And so I think that idea kind of permeates the public body that, “Oh, we’re giving you this luxury just to appease you” rather than “we’re letting the public comment on our work and taking that advice into consideration.”
So I think they have to almost have a commitment to say, “We want to hear what the public says. We want to give the public a chance to speak about this legislation.” But without that, it often just becomes, “Oh, we’re doing this so we can say we’re open,” and they don’t really pay attention to a lot of the public comment.
GILGER: Interesting. So let’s talk about some of the other ways in which these kind of public bodies — like city councils, but we’ve also seen examples of this at the state Legislature — and how they deal with public comment, public testimony, etc. I think about when a council will go into executive session, right? How does that apply to this broader idea of being transparent and allowing for free speech?
LESLIE: Well, executive session laws or exemptions from the open meetings laws are meant to be very narrow when you’re discussing things that can’t be public. Usually like legal advice, if you were public with the legal advice you were getting, then you would lose the privilege of keeping that confidential. So there’s a certain obligation to keep legal advice, confidential.
And then other things could be. “If we discuss this, it’ll affect our ability to get this contract signed” or something. If there’s a very specific reason you have to keep something confidential. the law is very protective to make sure you can do that. But in every body I’m aware of, that executive session provision just becomes a wide open way to say, “We can’t discuss this with the public, so we’re going into executive session.”
And then it’s impossible for the public to tell really what happened. And it should be that anything done in executive session has to be ratified in a public vote. But you don’t see that a lot either.
GILGER: Is that often challenged?
LESLIE: It’s just so hard to win. I think people have given up on challenging it, frankly.
GILGER: Those open meeting laws. So there’s another example of this. There was a lot of discussion, some scrutiny last session at the state Legislature about public testimony at committee meetings and how long people were given to speak. It was often restricted to just a couple of minutes or selecting one person from a group to sort of represent the cause. What is supposed to be allowed there?
LESLIE: It’s hard to say, again, because a legislature does not have to allow any public comment. Once they do, they’ve created a limited public forum, and they can’t restrict it based on your viewpoint or the content of your message. But at the same time, if they allow endless public comment, it could just overtake the whole agenda.
You know, people wanting to speak for two minutes — well, if they’re 80 people who want to do that, even that can be quite burdensome. So the idea in the First Amendment is that you’ve got to have reasonable time, place and manner restrictions. So it’s impossible to create a clear rule from that.
You know, it’s almost always context dependent. So will a court let a body get away with that? If there's an actual statute that says you have a right to speak before the Legislature, and they say that we’re only making reasonable time, place and manner restrictions so that we can get everybody through here, then it’s purely up to a court to say whether that’s reasonable.
But more likely than not, they’ll say if you’re trying your best to comply with the rule, but you have to put limits on it, courts will let public bodies get away with that. I think the biggest problem we have now is that once a body decides to limit comment, there’s nothing you can do, unless you go to court to sue.
And so they know they have that power, and so I think the best solution to dealing with that is to have a court recognize that there’s a constitutional right, a First Amendment right to speak — not just a statutory allowance. So once you get that constitutional right, you’re starting with the presumption that, “Of course I have the right to speak.”
And then, yes, you work back to there must be some limits on that. But if you can start with the idea that the speaker has a right, rather than the Legislature or the city council is giving you some gift. I think that that starting point makes a big difference.
GILGER: That makes sense. What are your predictions for a case like this? So FIRE has now taken up this case on First Amendment grounds for this woman in Surprise. Have you seen cases like that be successful?
LESLIE: I would think she would win on the point that she had a right to speak. But this is the difficult part: Once you are told you don’t and someone is trying to escort you from a podium, do you have a right to say, “No, I’m not leaving. Get your hands off me”? We like to think of it as she was arrested for speaking, and that must be remedied by the court.
But in a sense, she was told she had violated the rule that she had agreed to. And then she was only arrested for not leaving the chamber where she didn’t have a right to be. So that makes it tough. It really makes it a complicated question. But that itself is a complicated question because if you’re arrested in public for speaking and they say you’re actually just trespassing, you can prevail in court by saying, “Yeah, but they were doing that just to interfere with my rights.”
So that’s the argument you have to make. And it’s very possible she could prevail.
