2018's Most Influential Amendment: the First

• Publication year: 2018
• Author: By Scott C. Smith

2018's Most Influential Amendment: The First

By Scott C. Smith

MCLE SELF-STUDY ARTICLE

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Scott Smith is a partner in Best Best & Krieger LLP's Irvine office. He has worked for BB&K since law school graduation, representing cities, special districts, and LAFCOs. He serves as city attorney to Aliso Viejo and San Clemente and as general counsel to Santa Margarita Water District and Orange County LAFCO. He represents private and public clients on issues relating to speech and other First Amendment issues. The colleagues who helped Scott with this article are too numerous to credit individually.

Katy Perry, Barack Obama, Ellen DeGeneres, and YouTube are among 2018's ten most followed Twitter users. However, if the First Amendment had its own Twitter account, its celebrity status would have made it a definite contender to crack the 2018 top ten. With a Kardashian-like omnipresence, the First Amendment popped up in all kinds of decisions, ranging from key cases on labor relations to homelessness to emerging media platforms. The government had to grapple with public officials' increased ability to access and publish viewpoints in real time. Courts were forced to apply old tests for speech in parks and on street corners to newly emerging and innovative media platforms. Lawyers have always kept tabs on the First Amendment, but this year it was hard for anyone to avoid its publicity. This is a summary of the comings and goings of one of 2018's most interesting public law celebrities.

I. SEEKING SOAPBOXES — NEW DECISIONS ON PUBLIC FORUMS

State and federal courts provided much guidance this year about what constitutes a public forum and legitimate governmental limits on speech in those forums. A California Court of Appeal limited a member of the public's participation in a transit board's meetings, while a U.S. District Court expanded public access to the President's Twitter account.

Public meetings are not open mic night. #transitnotkaraoke

The Ralph M. Brown Act and the First Amendment both relate to public speech, but the case law discussing how they interrelate is rather scarce. The Act clearly creates a forum for public speakers, but also limits the length and content of public participation for off- and on-agenda "business." The California Court of Appeal's decision in Ribakoff v. City of Long Beach¹ solidly affirms these time, place, and manner constraints. The decision also provides opportunities for a public body to select and channel public testimony, briefings by staff, experts' testimony, and invited speakers to meet the body's fact-finding and decision-making needs.

The plaintiff, Ribakoff, regularly attended meetings of the Long Beach Transit Company board of directors, a Brown Act body. Board policy required each speaker for public comment to fill out a public comment card, which informed speakers of the three-minute time limit to address the board. Ribakoff filled out a card and spoke for three minutes on agenda item number 10. After public comment on item 10, Ribakoff tried to speak to the board a second time but was not allowed. Ribakoff brought suit claiming the board's time and subject matter restrictions on public comment and the board's different treatment of speaker times by staff versus the public violated the Brown Act "Open Meetings" Law and his First Amendment free speech rights.

In affirming the trial court's rejection of Ribakoff's claims, the appellate court determined that the board's three-minute time restriction was reasonable and did not violate the Brown Act or the First Amendment. First, the Brown Act expressly authorizes public entities to put reasonable restrictions on the amount of time a speaker can speak at a meeting. Second, the restriction did not violate the First Amendment because it was a content-neutral restriction that simply limited the amount of time for speech and not what was said. Ribakoff also argued that the restriction was illegal because it was not uniformly applied to all speakers including staff and invited speakers. However, the court concluded that the City had a reasonable justification for treating speakers differently. Contrary to Ribakoff's contention, the court held that speech at government meetings is not unlimited and public entities can limit speech at meetings based on time or even some types of content, such as requiring a speaker to address only the topic or agenda item at issue.

@RealDonaldTrump Twitter account is a governmental public forum. #badpublicityisgoodtoo

The U.S. District Court for the Southern District of New York decided that President Donald Trump's private electronic media platform had evolved into a quasi-governmental platform requiring two-way public communication. @realDonaldTrump could therefore not block comments from other Twitter users.

In Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump² several Twitter users filed a complaint after realizing they were blocked from accessing @realDonaldTrump, President Trump's most-often used Twitter account. Trump established @realDonaldTrump in 2009 and continued to use it following his inauguration as a channel for communicating and interacting with the public about his administration. The plaintiffs claimed they were blocked because they sent critical tweets of the President and his policies — a claim never disputed. At issue was whether the President's Twitter platform was a public forum for First Amendment purposes.

To determine that issue, the court needed to answer three fundamental questions. First, the court easily concluded that the speech in which the plaintiffs engaged was political speech protected by the First Amendment. Second, the court concluded that @realDonaldTrump is a public forum. For a space to be susceptible to forum analysis, it must be owned or controlled by the government. The court found that @realDonaldTrump was controlled by the government, despite that it was first established in 2009 before the President was elected to public office. For the court, the key facts were that the Twitter account was registered to "45th President," White House staff helped operate the account, and the President used the account to, among other things, hire and fire Cabinet appointees.

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Privately-owned property (such as @realDonaldTrump) can become a public forum if under government control.

The court relied on the long-established rule that privately-owned property can become a public forum if the space is under government control. The court distinguished between a public official's personal, as opposed to public, social media account: "No one can seriously contend that a public official's blocking of a constituent from her purely personal...