Harassing Speech in a Limited Public Forum: a Double-edged Liability Sword

• Jurisdiction: California,United States
• Author: By Rachel H. Sommovilla*
• Publication year: 2015
• Citation: Vol. 38 No. 2

Harassing Speech in a Limited Public Forum: A Double-Edged Liability Sword

By Rachel H. Sommovilla*

I. INTRODUCTION

As most public law attorneys know, members of the public can make some offensive and hostile remarks during the public comment period of a public meeting. Seattle, for example, has a regular commenter who refers to its councilmembers as Nazis, communists, and the Gestapo, and who peppers his comments with expletives. In September 2014, that city council rejected that commenter's appeal of his exclusion from council chambers for off-point, abusive disruptions at council meetings.¹ That same month, the city council of Richmond, California adopted measures to address meeting disruptions resulting from anti-gay rhetoric during the public comment portion of its meetings.²

Legislative bodies have the right and the duty to conduct their meetings in an orderly manner. Citizens have a constitutional right—and a statutory right under the Brown Act—to address such a local public body. And public employees have a general right to be free from a hostile work environment. The challenge is to balance these sometimes competing interests in the context of a public meeting.

This article first describes an employer's basic duty to protect its employees from a hostile work environment, including from third parties. The article then examines the limitations on regulating speech by the public at meetings of local legislative bodies in California, as well as a local entity's potential liability for both preventing potentially harassing speech, and for allowing it. Finally, the article describes one potential step local public entities can take to attempt to minimize some of these legal risks.

II. AN EMPLOYER HAS A DUTY TO PROTECT ITS EMPLOYEES FROM A HOSTILE WORK ENVIRONMENT

An employer has a duty to prevent and remedy instances of harassment of its employees. While most antidiscrimination laws, such as Title VII, bar discrimination in the "terms, conditions, or privileges of employment,"³ courts have interpreted antidiscrimination laws to prohibit hostile work environment harassment. In general, a hostile work environment claim involves "severe or pervasive" conduct enough to create a hostile or abusive work environment based on race, religion, sex, national origin, age, disability, veteran status, sexual orientation, among other categories, for a reasonable person in the same protected class as the plaintiff.⁴ Similar standards apply to claims under the Fair Employment and Housing Act (FEHA).⁵

Hostile work environment harassment claims, however, can pose difficult First Amendment problems where the harassment may encompass potentially protected speech, as opposed to physical touching or unprotected speech (such as threats or fighting words). The California Supreme Court has noted "that the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment"⁶ in the context of a suit against a private employer that permitted its employee to be the target of racial epithets repeatedly spoken by a fellow employee. However, courts have also recognized that the First Amendment protects speech that may violate a public employer's harassment policy, but pertains to matters of public concern.⁷

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While courts have concluded that an employer may be liable for the harassment of its employees by third parties if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it,⁸ the First Amendment issues are thorny in this context—especially for public employers, where third party speech may include speech in a public or limited public forum. The U.S. Equal Employment Opportunity Commission ("EEOC") recognized this tension in an informal opinion letter entitled "Title VII: Harassment by third party members of the public" in 2012.⁹ The letter responded to a request for guidance on the question of a city's Title VII obligation to control the actions of citizens during an arrest process. The EEOC letter noted that while "an employer would [not] be exempt from Title VII liability for failing to take reasonable steps to curtail citizen harassment of law enforcement officers," "the reasonableness of the employer's corrective action would depend on the totality of the circumstances. These would include the nature of the alleged harassment, the specific context in which it arose, and practical limitations on the employer's ability to respond to the harassment such as constitutional constraints on the city or on another public employer."

The "constitutional constraints on a city or public employer" are significant where citizens speak at public meetings and make derogatory or offensive comments regarding the local entity's employees or members of its legislative bodies. There is a tension between hostile work environment liability concerns, on the one hand, and the free speech rights of citizens at public meetings, on the other.

The following outlines the public's rights and limitations regarding speech at public meetings of local legislative bodies in California, and then describes one possible mechanism for walking the fine line between protecting employee rights as well as the speech rights of the public.

III. PUBLIC FREE SPEECH RIGHTS AT MEETINGS OF LOCAL LEGISLATIVE BODIES

As a matter of Constitutional law, a city council meeting constitutes a limited public forum.¹⁰ A council can regulate the time, place, and manner of speech, as well as the content of the speech, so long as content-based regulations are reasonable, viewpoint neutral, and uniformly enforced.¹¹ Accordingly, while members of the public have broad rights to free speech at such meetings under both the First Amendment to the United States Constitution and Article I, Section 2 of the California Constitution¹², a legislative body may properly limit the matters to be addressed by the public to those within that body's subject-matter jurisdiction.

The Ralph M. Brown Act generally provides that the legislative body of a local agency must hold its meetings open to the public except as expressly provided. The Act allows members of the public to "directly address the legislative body" but limits that right to discussion of "any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body,. . . ."¹⁴

A city council, therefore, can limit a speaker from speaking on a matter not within its subject matter jurisdiction and may stop a person if the speech becomes irrelevant or repetitious.¹⁵ It may not, however, limit only certain views, even if those views include false or defamatory speech, given the broad protections of speech under California's Constitution. A local legislative body, therefore, must take care to enforce any limitation on public comment in a viewpoint neutral manner.¹⁶ A policy prohibiting criticism of employees, for example, is impermissible.¹⁷

A council's rules are constitutional if they "only permit[ ] a presiding...