DETROIT. A letter was sent today by the American Civil Liberties Union to Battle Creek Mayor Mark A. Behnke criticizing his unilateral decision to terminate the public comment portion of the City Commission meetings. Mayor Behnke’s decision was in response to his fears that citizens were making “terrorizing” remarks and verbally attacking city officials.
James Rodbard, an attorney and member of the ACLU Southwestern Michigan Branch Board, requested that the public comment portion be restored to the public access broadcasts of the City Commission meetings. He emphasized that access to television coverage of the meetings may be the only realistic means by which many citizens of Battle Creek have the opportunity to participate in local government and be included in the ongoing debate on many of the issues decided by the Commission.
“By cutting off the public comment portion of the meetings, you have figuratively taken a ‘sledgehammer’ to a ‘gnat’ of a problem which can otherwise be remedied by far less restrictive means under the Michigan Open Meetings Act (OMA),” Mr. Rodbard wrote.
“Like the Commissioners and citizens permitted to speak to public matters before the public comment portion of the meeting, citizens exercising their rights during the public comment time are entitled to be heard by all of the public, including the audience of cable access,” he said further.
Concerns are still being investigated about whether or not the Mayor’s unilateral decision to terminate the broadcast of the public comment portion may be in violation of the Open Meetings Act or the Battle Creek City Charter.
In 1999, the ACLU of Michigan successfully sued the City of Battle Creek for ejecting citizens from criticizing the police chief during public comment time. Gault v. City of Battle Creek, 72 F.Supp.2d 811 (W.D. Mich. 1999).
The letter in its entirety follows:
The Honorable Mark A. Behnke
Mayor of the City of Battle Creek
10 North Division Street
Battle Creek, MI 49014
RE: Broadcast of Public Comment
Dear Mayor Behnke:
I am a member of the Lawyers Committee of the ACLU of Michigan, Southwestern Michigan Branch (the “ACLU”), and one of its board members. The ACLU was recently approached by members of the public regarding your unilateral, and apparently singlehanded decision to terminate the broadcast of the public comment portion of the City Commission meetings. This decision was ostensibly made because of your reported fear that citizens were making “terrorizing” remarks when addressing the City Commission, and because the meeting had become a place where city officials are verbally attacked.
I must tell you Mr. Mayor that our organization is deeply troubled by your precipitous response to a critically important and long standing tradition of broadcasting all of the Battle Creek City Commission meetings. Cable access broadcasts of these meetings are literally the only realistic means by which citizens of Battle Creek can participate in local government, and be included in the ongoing debate regarding the city’s direction.
By cutting off the public comment portion of the meetings, you have figuratively taken a “sledgehammer” to a “gnat” of a problem which can otherwise be remedied by far less restrictive means under the Michigan Open Meetings Act (the “OMA”). The OMA provides that “a person shall be permitted to address a meeting of a public body under rules established and recorded by the public body.” The Attorney General has ruled that a public body may adopt a rule which prohibits a person from using the board’s and public’s time to make a personal attack on an individual; however,“if the phrase ‘personal attack’ . . . is intended to refer to the manner in which an employee of the . . . [public body] carries out his or her duties, the rule would be invalid. . . .” 1978 OAG 5332; 1978 WL 30762, at page 8 (emphasis added). See also Gault v City of Battle Creek, 73 F Supp 2nd 811, 814-814 (WD Mich 1999). Only if the conduct of the person being attacked is totally unrelated to the manner in which he or she performs his or her duties, may such comments be barred. Id.
I understand that citizens still have the opportunity to watch public comment time in person. However, I also believe that by intentionally creating a public forum via cable access broadcast of public comments, the city cannot make a content-based decision, such as yours, to end the forum. The city has made the forum available to an entire class of speakers, and has cut public comment from it on a basis unrelated to conforming the speech activity to the forum’s purpose. Under these circumstances, the city must show that its content-based censorship of public comment serves a compelling state interest, in a narrowly tailored manner. This, we believe, it cannot do.
It is extremely disappointing that a public official is so fearful of his constituents. If your constituents’ ideas are bad ideas, no one will listen to them anyway. If speakers violate the OMA, you are free to cut the speaker off and rule the speaker out of order. There are cases decided by state and federal courts all over the county that will uphold a public body’s right to silence a disturbance.
We have an additional concern about your unilateral decision to direct the termination of broadcast of public comment. We are reviewing whether you violated either the Open Meetings Act or the Battle Creek City Charter by making this decision independent of the City Commission as a whole.
This letter serves as the ACLU’s request that public comment time be restored to the broadcast of City Commission meetings. Whether public comment is accurate or inaccurate will rise and fall on its merit. Like the Commissioners and citizens permitted to speak to public matters before the public comment portion of the meeting, citizens exercising their rights during the public comment time are entitled to be heard by all of the public, including the audience of cable access, and are entitled to the same privileges and immunities, and subject to the same liabilities that accompany the exercise of those rights under the law.
Please feel free to contact me with any questions you may have. As a courtesy to the City Commission and you, we are sending a copy of this letter to City Attorney Robinson. We would appreciate a response to this letter as soon as possible.
Very truly yours,
AMERICAN CIVIL LIBERTIES UNION
SOUTHWESTERN MICHIGAN BRANCH
James N. Rodbard
cc: Michael J. Steinberg, ACLU of Michigan, Clyde J. Robinson, Commissioners of the Battle Creek City Commission