First Amendment experts call resolution “unconstitutional”
The Winter Garden City Commission last week unanimously passed new rules dictating conduct for journalists who cover its public meetings — from commission meetings to advisory board meetings — a move that some media and free speech experts say is extremely problematic.
The resolution substantially updates a 2006 resolution that outlined citizen behavior at city meetings and includes the new Florida Statute 838.021, which prohibits threats against public officials.
“Stating the obvious, we all recognize that on a national level there’s been a significant lack of public decorum that exists at all different levels of public meetings, so we felt that this was a good opportunity to update that old existing resolution, incorporate the new state statute, as well as establish some criteria for the media,” said City Manager Jon Williams, introducing the resolution to the commission.
The rules for media are the first the city has instituted, Williams told VoxPopuli in a later email.
For instance, the resolution says journalists cannot disrupt meetings, follow or harass public officials and need to go through a city-designated information officer for interviews, comments and answers to questions. Journalists also cannot ask questions during the public-comment period.
Neither Ocoee, Oakland, Windermere, Winter Park nor Orlando have specific rules mandating how journalists interact with public officials.
Shown a draft of Resolution 23-02: Rules for Public Input and Decorum at Public Meetings of the City Commission, several First Amendment experts expressed concern, arguing that the media rules are “unconstitutional” and infringe on the ability of journalists to do their jobs.
“It’s outrageous that they would consider doing this and concerning that they did,” Bobby Block, executive director of the First Amendment Foundation in Tallahassee said in a phone interview.
He said the resolution is part of a pattern among local governments and school boards over the last few years to attempt to limit First Amendment speech and to curtail the ability to critique government officials under the guise of the rules of comportment and civility.
“On the face of it, the entire resolution is unconstitutional, and we're sure that it will not survive a challenge in the court,” he added.
Targeting “routine types of journalistic behavior is a constitutional-level problem,” said Lyrissa Lidsky, a constitutional law professor at the University of Florida’s Levin School of Law, in a phone interview. “Our government officials are accountable to the people and the press often serve as our proxy for gathering information about those officials.
“Our First Amendment law is based on a suspicion that government officials, if empowered to, will suppress criticism of themselves. And so we demand a level of care and precision in drafting statutes that might affect speech or even news-gathering behavior,” Lidsky added.
“Vague,” “ridiculous” language
At issue is language in the resolution that legal experts consulted by VoxPopuli described as “vague” and “ridiculous.” There’s wording such as “Mayor/Commissioner, Commissioners and other City Officials should not be followed … before, during or after Commission meetings to request interviews, to obtain comments or to respond to questions.”
Government law expert Clifford Shepard said White House correspondents “follow” President Joe Biden, including on Air Force One to cover events.
“If journalists didn’t follow sources to get answers, we would never get answers,” Shepard said in a phone interview. His Maitland-based law firm Shepard, Smith, Kohlmeyer & Hand represents numerous municipalities.
He said that attempting to restrict reporters’ access to city officials would open the city up to “legal jeopardy” because it “constitutes a clear interference with the news gathering function as well as the right of every citizen to question their elected officials.”
Lidsky said the language prohibiting reporters from following city officials was “overbroad.”
“We expect our press to be our proxies as members of the public and to perform a watchdog role to make sure our government officials are behaving as we the people want them to do,” she said. “In order to perform that role, they have to be engaged in absolutely standard news gathering techniques. And so to the extent that that language would say, a reporter can't engage in absolutely standard news gathering techniques, it creates a problem.”
Williams insisted in his email to VoxPopuli that “simply approaching” officials would not violate the resolution. “It’s not the intent to prevent reporters from interacting,” he wrote.
Legal experts also took issue with the list of disruptive behaviors included in the new resolution, such as offensive communications, personal attacks, unwanted interactions (the latter phrase was ultimately stricken from the approved resolution) — all of which could result in a reporter’s removal from a city meeting as well as suspension from subsequent meetings (or “cooling down period") for repeat infractions.
Shepard described that as “absolutely a violation of the Constitution and the Sunshine Law.”
“This definition is ridiculously vague, and at least some of the terms used in it would not withstand scrutiny in a constitutional challenge,” he said. “But, of all of them, unwanted interactions is offensively unconstitutional. I have 'unwanted interactions' every single day of my life. We all do. When that happens, I can still hear my mom’s voice ringing in my ears: Get over it.”
Williams, who told the commission before the vote that he had fielded inquiries about the new rules from Fox 35, WESH, Spectrum News and WFTV, ultimately deleted unwanted interactions from the list of disruptive behaviors after a reporter explained to him that “that could have them removed from a public meeting in pursuit of a story.”
“There is nothing disruptive about holding an elected official accountable whether they want it or not,” said a local reporter who heard about the change. “We still believe some other parts of these rules are problematic, but this change makes it harder to arbitrarily remove a journalist for doing the core function of their job.” The reporter asked to remain anonymous so as not to violate the terms of their employment.
Even so, the resolution passed with other disruptive behaviors like offensive communications still on the list, something that University of Florida’s Lidsky found concerning.
“That is completely vague and, ‘in the eye of the beholder,’ in a way that would have a chilling effect on press coverage,” she said. “We expect thin-skinned people to stay out of public life. Our First Amendment dictates that you can’t be thin-skinned and be in public life.”
A public voice
In another change, the resolution seeks to prevent reporters from questioning commissioners during a portion of the meeting — known as “Matters from the Public” or “Matters from Citizens” — when residents can bring up topics that are not listed in the regular agenda. This is a tactic that VoxPopuli reporters have used to get officials to comment for the record when they have not responded to phone or email requests for information.
“We’ve received some citizen complaints about media addressing the commission during public comments, and that’s not the proper place for that to happen,” Williams said during the commission meeting. In a follow-up email, Williams told VoxPopuli he had received “7+” complaints.
While city officials aren’t obligated to respond to reporters’ questions during the public comments portion of meetings, Shepard said the city also doesn’t have any standing to stop reporters from asking questions then.
“That is simply not something that they can regulate,” said Shepard. “As the media, you are the public. In fact, oftentimes you are the voice of the public because the public isn’t there, at the meetings most of the time. That's why a free and robust press is supposed to be a part of what we look at as constitutionally recognized in this country.”
First Amendment Foundation’s Block agreed. “The First Amendment is pretty clear [about] the rights to redress government and the rights of the free press. How anyone could think this is an appropriate response obviously isn't reading the Constitution or doesn’t care. And I would urge everybody in that city council to both read it and to care very much.”