Yes, you have a First Amendment right to ‘demean’ government officials

Bay City native Madonna — no fan of censorship — probably wouldn’t be thrilled with her Michigan hometown’s violation of its citizens’ First Amendment rights. The city code prohibits people speaking during the public comment period of city commission meetings from “demeaning city officials, officers, or employees,” making “[d]erogatory comments directed at another person,” or “using vulgarities.” That’s bad news for Bay City residents who want to take the Queen of Pop’s advice to “Express Yourself.” 

In a letter sent last week, FIRE called on Bay City’s government to eliminate these unconstitutional restrictions on its constituents’ right to speak freely about matters involving the city and its leaders.

The prohibitions on “demeaning” and “derogatory” comments violate the First Amendment by selectively targeting speech based on viewpoint. The Supreme Court has made clear that even a speech restriction that “evenhandedly prohibits disparagement of all groups” is viewpoint discriminatory because determining whether speech is disparaging requires the government to consider the viewpoint expressed. And basic First Amendment law dictates that speech does not lose protection because others subjectively find it offensive or otherwise objectionable. 

It is all too easy to envision the Commission enforcing the rules to suppress criticism of commissioners and other city officials while giving the public free rein to praise the city and its leaders.

Bay City cannot justify a flat ban on “vulgarities,” either. Just ask Paul Robert Cohen. In 1968, Cohen walked into a Los Angeles courthouse wearing a shirt that read, “Fuck the Draft.” He was convicted of disturbing the peace, but the Supreme Court reversed his conviction on appeal, stating that “so long as the means are peaceful, the communication need not meet standards of acceptability.” The Court added that if governments were allowed to “forbid particular words,” they “might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

A “vulgarity” may well be relevant to a Bay City resident’s public comment. FIRE has seen local governments use similar bans on “obscene” speech to suppress public comments on relevant issues, such as a school board that cited a parent for saying the word “penis” to describe and complain about a case of indecent exposure on school grounds. 

The problems with the commission’s rules run even deeper; they’re also unconstitutionally vague. As we said in our letter:

When does a comment directed at a government official cross the line from merely critical to “demeaning” or “derogatory”? Making this determination is an unavoidably subjective exercise. There is no clear answer. Yet, laws and regulations “must provide explicit standards for those who apply them” to prevent “arbitrary and discriminatory enforcement.”

Bay City is far from the only example of a city or other government entity adopting a vague and overbroad “decorum” policy to control constituents’ speech. Some viewpoint-neutral, objective, prepublished limits on public comment may be constitutional, such as limiting the amount of time reserved for each comment. But as FIRE explained in a recently filed amicus curiae brief, governments frequently use so-called decorum policies to shut down criticism of government officials. 

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FIRE filed a lawsuit against the mayor of Eastpointe, Michigan, for censoring residents during public comment in city council meetings.

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You need only drive two hours south from Bay City to find a stark example of a government official suppressing criticism in the name of decorum. FIRE recently sued the mayor of Eastpointe, Michigan, who shouted down and interrupted constituents at city council meetings when they tried to comment on her dispute with another council member. The mayor cited a policy forbidding commenters from directing speech at a council member, but she conveniently wasn’t a stickler for that rule when supporters called her “beautiful” and “wonderful.”

FIRE is concerned that Bay City commissioners may apply the city’s decorum rules in the same way. As we told the city, “It is all too easy to envision the Commission enforcing the rules to suppress criticism of commissioners and other city officials while giving the public free rein to praise the city and its leaders.” Such a double standard would violate the First Amendment and betray what the Supreme Court described as our country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” 

FIRE calls on Bay City’s government to get Into the Groove and remember that citizens expressing themselves is in Vogue by abolishing its unconstitutional decorum rules.

We look forward to the city’s response to our letter.