First Amendment Foundation to Winter Garden: “Scrap” Media Rules
Editor in Chief
Monday, October 23, 2023
The First Amendment Foundation sent letters last week to Winter Garden officials, documenting the ways the city's media rules in Resolution 23-02 violate state and federal laws. They urged the city to “repeal it in its entirety.” A city commissioner says it's time to make some "modifications."
Updated Oct. 24, 2023
The First Amendment Foundation last week sent Winter Garden’s city manager, mayor and city attorney each a letter stating that Resolution 23-02 “unlawfully limits the process of news gathering and the public’s rights of speech and petitioning their government.” They urged the city to “repeal it in its entirety.”
“Enactment and enforcement of the Resolution’s terms have already caused harm,” states the Oct. 16 letter, which VoxPopuli was copied on. “If they are not remedied, they will continue to harm the public and the news media acting as the public’s surrogate.” The letter continued, “…decorum cannot come at the expense of the protections granted by the First Amendment.”
First Amendment Foundation cautioned that keeping the resolution on the books could potentially harm the city as well, leaving it vulnerable to litigation by at least one national free-speech advocacy group. They cited a case in Otero County, New Mexico, where a citizen, who had been removed from a county commission meeting under “arbitrary etiquette rules” like Winter Garden’s, was later awarded $45,000 in a civil settlement.
Rules for decorum or censorship?
Resolution 23-02, enacted February 9 after a 4-0 vote of the city commission, details rules of decorum for the public at city meetings and includes a wholly separate set of rules for journalists who report on Winter Garden city meetings. These media rules include not disrupting meetings, not harassing or heckling officials and contacting the designated public information officer (which Winter Garden does not have) for quotes, interviews and questions.
The rules also bar reporters from “follow[ing]" the mayor, city commissioners and other city officials “before, during or after city commission meetings to obtain comments, to request interviews or to answer questions.” Asking city officials questions during the meeting’s public comment period is also not permitted. Violations can result in a reporter being banned from future meetings.
(Full disclosure: In June, Winter Garden City Manager Jon Williams threatened to ban VoxPopuli from city commission meetings after we asked Mayor John Rees if he condemned the neo-Nazis that distributed antisemitic flyers throughout Winter Garden neighborhoods. Read the mayor’s response here.)
After the resolution passed in February, First Amendment Foundation Executive Director Bobby Block told VoxPopuli, “The entire resolution is unconstitutional, and we’re sure it will not survive a challenge in court.”
The Oct. 16 letter, signed by Block along with First Amendment Foundation’s General Counsel Ed Birk and Legal Fellow Grace Nzekwesi, explains that the resolution violates federal laws because “news gathering enjoys First Amendment protection. Mere questioning of the mayor/commissioner and other city officials cannot constitute harassment and disruption.” Further in the letter, they reiterate, “words alone, without actions, cannot rise to the level of disruption. Therefore, restricting or punishing speech, without actual disruption is unlawful and contrary to our system of self-government.”
The resolution also violates Florida Statute § 286.0114 in exceeding the ways a board or commission can control public comment at meetings, according to the letter. Those are limited to:
Establishing when public comment occurs during a meeting.
Establishing procedures for attendees to let the commission know they want to be heard.
Determining how much time each person has to address the commission.
Establishing procedures for allowing representatives of large groups to address the commission when many wish to speak on the same topic.
Asked to provide the legal basis in that statute for Winter Garden to bar journalists from questioning city officials during public comment, Daniel Langley, assistant city attorney and the architect of the media rules, did not provide one in the email he sent VoxPopuli Monday, stating only that, according to the statute, officials were not obligated to respond to questions or comments.
“Nothing in the statute mandates answers be given to questions raised during public comment nor require that any response be given to comments made during public comment,” Langley wrote in his email. “The City Commissioners have a First Amendment right not to speak in response to public comments or to answer questions raised during public comment or at any time.”
Rework or repeal?
The Oct. 16 letter is the second that First Amendment Foundation sent to Williams, Rees and Ardaman. An initial letter was sent July 25, after VoxPopuli received the violation notice for questioning Rees about the neo-Nazis. The July 25 letter encouraged city officials to “rework” the resolution (and “cease its threats” against this publication). But after an off-the-record meeting Aug. 3 with Williams and Langley, Block said the First Amendment Foundation changed its outlook.
“Our legal team took a deeper look at the language after meeting the City Manager and came to the conclusion that short of a major reworking of the resolution, the only way to deal with its transgressions was to do away with it entirely,” Block told VoxPopuli Sunday in a text message. “We hope the city will take our recommendation to heart and just scrap it.”
Asked if city would repeal the resolution, Ardaman said last week, he had not seen the email. Rees did not respond to emailed questions. Williams and Langley declined to comment.
At least one Winter Garden commissioner is open to changing the media rules. District 4 Commissioner Colin Sharman likens the situation to one years ago when he was new on the commission and an ordinance got passed requiring the use of rubberized paint to keep water out of homes during hurricanes. "We found out we couldn't do it because it was against state law, so we had to retract it," Sharman said in a phone interview Monday.
"My philosophy here is the same. If it violates state law, we need to make modifications," said Sharman, who was absent for the February vote approving the resolution. "I'm in favor of changing it to where anybody can ask the question. It's just the question doesn't have to be answered. Let me be clear. You can come and ask the question, and it may or may not get answered.”
Langley said the city commission could establish a rule not to answer questions at all during public comment. But when asked if he anticipated that the city planned to go that route, Langley said, “no comment.”
Such a rule would mean that the mayor, commissioners and other city officials wouldn't just not respond to reporters during public comment; they wouldn't respond to anyone's question or comments. To respond to one and not the other creates another Constitutional problem.
"Selective responses that would answer the questions of citizens but not reporters would be 'disparate treatment' based on newsgathering functions, which is unlawful under the First Amendment," noted Birk.
Sharman, for one, does not want to see such a rule dictating whether commissioners can respond to reporters and their constituents.
“I don't think we should put a rule in place to never answer questions; I think we should just leave it up to the individuals,” Sharman said. “I am not in favor of banning, whether it’s from a constituent or a person from the media, I’m not in favor of banning a response if a commissioner chooses to answer.”