Sparring over testimony leads to free speech debate – Capital Gazette – CapitalGazette.com

Anne Arundel residents who attend County Council meetings are barred from carrying balloons, signs and banners in the legislative chambers. They're restricted to two minutes of testimony on a particular topic. And they can be removed from public meetings for disorderly behavior.

But when it comes to the content of their speech, how much can the government limit?

The question came to a head at last week's council meeting, when several citizens who had come to testify on an anti-racism resolution were told they could not talk about Councilman Michael Peroutka's former membership in a pro-secession group.

The decision, by Council Chairman John Grasso, R-Glen Burnie, sparked an immediate uproar. More than once, the chambers erupted into a shouting match between Grasso and citizens who disagreed with his ruling.

Grasso justified his stance by pointing to the council's rules of procedure, which include a section, 4-106, that prohibits "personal, defamatory or profane remarks" during meetings.

"We are here to talk about resolutions that Councilman (Pete) Smith put in and attacking other councilmen is not going to be permitted," he said. "If you want to talk about councilmen, you can do it on your own time, but not here."

Audience members countered that the comments were truthful and relevant to the broader conversation condemning racism.

Peroutka, R-Millersville, was criticized during the 2014 election cycle for his involvement with the League of the South, which has been labeled a hate group by the Southern Poverty Law Center.

During the campaign, a 2012 video surfaced that showed him asking the crowd at a League of the South event to stand for the national anthem. He then played "Dixie," a song celebrating the South that became the anthem of the Confederacy during the Civil War. Peroutka later said the clip had been taken out of context.

In October 2014, Peroutka announced he had left the league because he disagreed with statements members made in opposition to interracial marriage. At the time, he said he had no problem with the group and still supported its stances on self-government and preserving Southern heritage.

Along with the rest of the council, he voted in favor of last week's anti-racism resolution.

Yasemin Jamison, who first broached the topic of Peroutka's League of the South links, said her intention was to ask the councilman "to publicly say the League of the South is a racist organization and apologize for his membership."

"He could have said, 'No, I refuse to do that.' That's his prerogative, that's his right," said Jamison, who is a constituent of Peroutka's and a founder of the progressive group Anne Arundel County Indivisible. "I did not defame anybody; I did not say anything negative about my Councilman Peroutka. This is my testimony and it is a fact that he was a member of the League of the South."

William Rowel, who also attended the meeting, defended Jamison when Grasso told her she couldn't talk about the League of the South.

In Anne Arundel County, he said in an interview a few days after the meeting, "you have policymakers with informed constituents."

"If anything, you would champion that; you would say, this is great, people know what's going on in their communities, in their county and they want access to it," Rowel said. "The fact that they would discourage that, that they would shame people for doing it it's wrong. There's really no other way of looking at it."

Jamison said she is considering taking legal action against the council for restricting her speech.

Grasso said he stands by his decision to bar the topic.

"They were leading into a personal attack and the speaker will not address personal attacks towards the body; that's the bottom line," he said. "It wasn't on the subject matter."

Grasso said he shut down League of the South remarks in an attempt to keep order and decorum in his chambers.

"That meeting had clear rules in my eyes," he said. "What my opinion is and what others think might be different, but I was voted the chairman ... I'm in charge of keeping the meeting moving. It's my opinion that counts, and if they don't agree, they can run for office."

Limitations

The law does allow for some restrictions to be placed on speech in government settings, though they must be narrowly tailored. County Council meetings fall under the category of a "designated public forum," created by the government to allow citizens to express themselves to public officials.

The council has for years limited individual testimony to two minutes. In 2013, council members amended their rules of procedure to ban visual displays in the chambers, to prohibit "personal, defamatory or profane remarks" or "loud, threatening and abusive language" and to require speakers to give their name, address and any organizational affiliations before testifying. Grasso voted against the changes at the time.

The rules give the council chair permission to remove anyone who violates them and to clear the entire chambers in order to restore order.

Residents have challenged those limitations in the past. A Glen Burnie woman was removed from a council meeting in 2012 after she went over the time limit for testimony.

Many of the limitations are practical, said Councilman Jerry Walker, R-Crofton, who was council chair when the rules were updated in 2013.

"We banned posters because they would block people's line of sight," he said. As for testimony, he added, "it's supposed to be on the resolution."

As tensions rose during last week's meeting, Councilman Chris Trumbauer, D-Annapolis, asked Grasso to read the rules in an effort to calm the room.

Trumbauer said he believes the rules are "somewhat open to interpretation."

"Free speech means you can say whatever you want and not be penalized for that," he said, but "we have rules because we have to conduct business."

In designated public forums, "the government has the right to restrict what is being said, based on the purpose of the forum," said Eric Easton, a professor at the University of Baltimore School of Law.

But officials have to be careful not to bar certain topics based on politics, he said: "What they can't do is limit the conversation to believers of one side only in a controversy. Any restrictions on public speech have to be viewpoint-neutral."

It's common for legislative bodies to make rules against personal attacks, Easton added, but "the problem comes in: is this nothing but a personal attack or is it germane to the subject?"

In the case of discussion surrounding the anti-racism resolution, if the public's comments "were on that subject, they at least have an arguable case that maybe their rights were being restricted," he said.

In the view of Mark Graber, a professor at the University of Maryland Francis King Carey School of Law, Grasso's decision to bar testimony on Peroutka's past was "a very, very clear violation of the First Amendment."

Graber held a First Amendment workshop for Anne Arundel County Indivisible members and others before the start of last week's council meeting.

He said an example of a personal comment would be calling a councilman "ugly."

In contrast, Graber said, testifiers "spoke on relevant topics."

And, several pointed out at the meeting and afterward, remarks about Peroutka's past League of the South membership cannot be defamatory if they are truthful.

It is particularly difficult for public officials to argue they have been defamed. In the landmark 1964 New York Times v. Sullivan case, the Supreme Court ruled that an official has to prove a person acted with "actual malice," meaning they knew a statement was false or they acted with reckless disregard of the truth when they uttered the alleged slander.

"This was a comment of, 'You belong to the following groups,'" Graber said. "You're a public official; the groups you belong to are a matter of public interest."

The county's Office of Law did not return a request for comment.

Without a ruling from a judge, there's not much citizens can do to challenge Grasso's interpretation, Easton said.

"The one interesting thing about the First Amendment is you're never sure until a court rules on the exact facts that you have," he said.

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Sparring over testimony leads to free speech debate - Capital Gazette - CapitalGazette.com