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When Hate Comes to Town: Addressing Racist and Anti-Semitic Public Comment at Meetings

When Hate Comes to Town: Addressing Racist and Anti-Semitic Public Comment at Meetings

In recent months, there has been a disturbing trend in which the public comment period of city council meetings has been used to make antisemitic and racist statements. The comments are typically made by individuals appearing remotely over Zoom who sign up for public comment under assumed names and do not appear on camera. In some cases, it appears the same individual signs up multiple times under different names so that they have additional opportunities to comment.

This is not an isolated phenomenon. It is occurring in multiple states, including numerous cities in California (San Diego and San Francisco for example), Eugene, Oregon, and Iowa City, Iowa, to name a few. In recent weeks, this disturbing trend has reached several cities in Washington State. This blog will look at measures Washington local governments can take to minimize the chance that their public meetings are disrupted by hate speech.

Public Comment is a Limited Public Forum Under the First Amendment

When local governments provide an opportunity for public comment at meetings, it is considered a “limited public forum” for free speech purposes. That means the government can regulate the time, place, and manner of speech, provided the regulations are reasonable and content-neutral. For example, some local governments require public comment to be on a matter of agency concern or an item on the meeting agenda. Such a requirement prevents a speaker from commenting on matters that are not relevant to the agency.

Public comment rules should be clear and easy to interpret. In Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) the Ninth Circuit Court of Appeals struck down a rule that prohibited “insolent” action or speech because it was overbroad. The court found the policy swept “a substantial amount of non-disruptive, protected speech within its prohibiting language.” For more on free speech and public comment rules, see the MRSC’s blog, When First Amendment Rights and Public Meetings Clash.

Until fairly recently, Washington local government agencies were not required to allow public comment at meetings of the governing body, although many did so voluntarily. That changed in 2022, when the legislature amended the Open Public Meetings Act (OPMA) to require governing bodies to provide oral or written public comment at regular meetings. RCW 42.30.240(2) also contains the following requirement:

Upon the request of any individual who will have difficulty attending a meeting of the governing body of a public agency by reason of disability, limited mobility, or for any other reason that makes physical attendance at a meeting difficult, the governing body shall, when feasible, provide an opportunity for that individual to provide oral comment at the meeting remotely if oral comment from other members of the public will be accepted at the meeting.

Options for Addressing Hate Speech

Although the First Amendment and the OPMA place some limitations on local governments, deciding how best to proceed is a policy choice. Public comment plays an important role in allowing constituents to communicate with their elected officials.

On the other hand, hate speech causes harm, and it seems antithetical to the role of local government to allow public meetings to be co-opted by messengers of hate. Governing bodies need to weigh the advantages and disadvantages of restricting public comment for the purpose of minimizing hate speech.

Option 1: Eliminate remote public comment

One option that some cities in other states are pursuing is eliminating remote public comments. Services such as Zoom have made public participation easier, but such tools can be abused by individuals operating anonymously who may be in far-away places. If it is not possible to verify a speaker’s true identity and place of residence, then some local governments may decide that remote public comment is not worth it.

Washington local governments will need to comply with RCW 42.30.240(2), which allows an individual for whom physical attendance is difficult to request remote public comment. It would seem a local government could request information necessary to verify the identity of an individual making such a request.

Option 2: Limit public comment to items on the agenda

Another option is requiring that the comments be relevant to an item on the agenda. That requirement provides the presiding officer with the ability to quickly mute or disconnect a speaker that is not speaking to a matter of city concern.

Limiting speakers to topics that are relevant to the agenda or the business of the agency is likely not a content-based regulation. The agency is facilitating communication on topics of interest to the city rather than discriminating against viewpoints that may be expressed on those topics. However, it appears that some speakers engaging in hate speech have referred to agenda items at the beginning of their comments. This puts the presiding officer and governing body in the difficult position of deciding the point at which a speaker’s comments are no longer relevant to agency business.

Here are sample policies that limit public comment to items on the meeting agenda:

Option 3: Take steps to verify the identity of speakers commenting remotely

Taking steps to verify the identity of remote public commenters may be an option if technologically feasible. Agencies considering this type of measure should consult with their information technology experts to determine what options may be available. Keep in mind that verification of identity should only apply to individuals who wish to speak remotely during public comment: Under RCW 42.30.040, a local government may not require a person to identify themselves when they are simply attending a public meeting.

Why Not Prohibit Hate Speech?

It may be tempting to simply prohibit the use of hate speech during the public comment period, but there are a few reasons why this is inadvisable. First, a court would likely view a prohibition on hate speech as a content-based restriction. One of the bedrock principles of free speech is that government may not prohibit the expression of an idea simply because society finds the idea itself to be offensive. There is not an exception for hate speech under the First Amendment.

Second, hate speech is a difficult concept to define for the purpose of enforcing public comment rules. The problem rests not with the egregious examples of hate speech, but in those areas where there may room for disagreement. Asking a presiding officer and governing body to determine whether a speaker has used hate speech during the public comment portion of a meeting is a fraught undertaking with potential liability to the agency for violation of free speech rights.

Conclusion — Be Prepared!

Now is a good time to review public comment policies and determine whether changes are necessary. A local government should also discuss and plan how best to respond if hate speech is used during public comment. The presiding officer needs to be comfortable with both the rules and the technology platform and should understand when it is appropriate to turn off the microphone of those violating the policy. In addition, any policy that allows a speaker to be cut off should apply equally to in-person and remote speakers.

King County, Kenmore, and Port Angeles (among others) have issued statements condemning hate speech at public meetings and affirming their commitment to inclusivity, understanding, and respect for one another. The sad truth is that local governments may not be able to guarantee that hate speech will not occur during public comment, but there are measures that can be taken to make it less easy to espouse hate.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

Photo of Oskar Rey

About Oskar Rey

Oskar Rey has practiced municipal law since 1995 and served as Assistant City Attorney for the City of Kirkland from 2005 to 2016, where he worked on a wide range of municipal topics, including land use, public records, and public works. Oskar is a life-long resident of Washington and graduated from the University of Washington School of Law in 1992.