Who may speak at City Hall?

Democracy may not always be pretty, but at Los Angeles City Hall, it can be downright ugly thanks to a handful of gadflies who are repeatedly turning routine government meetings into circuses.

A small number of speakers regularly take the microphone at city meetings and spew profanities, racial epithets and sexually explicit language. They wander off topic and flash obscene gestures; they make animal noises from the audience. They shout in the aisles or scream in the hallways outside meetings. One gadfly has worn a Ku Klux Klan hood with a swastika on it.

This isn’t a new problem, but it seems to have gotten worse, with speakers using more aggressive and more hateful language to provoke a reaction. Council members argue that the unruly behavior is meant to offend and intimidate others, and that it has a chilling effect on public participation and disrupts government business.

In an attempt to limit the bad behavior, the City Council has proposed toughening up on people who have repeatedly been kicked out of past meetings by banning them from future meetings for a few days or as much as a week.

They’re right that something must be done about disruption. But they need to tread carefully. It’s a delicate balance to protect free speech while preserving decorum in public meetings, and the City Council has repeatedly been rebuffed by the courts for failing to strike that balance properly. This latest effort to swat at the most unruly gadflies is likely to prompt yet another lawsuit.

The new proposal would bar people from attending any council or committee meeting for the rest of the day once they are kicked out of a meeting. If the same person is ejected from another meeting within the next three business days, he or she would be excluded from meetings for the rest of that day and three more business days. If the same person is expelled again soon after that, the expulsion would continue for that day and the next six business days.

Federal courts have ruled that public speakers cannot be kicked out of meetings simply for using offensive or hateful language. A speaker has to create an actual disruption that stops or impedes the orderly conduct of the meeting to justify removal. (As an example, the spectators during the confirmation hearings for Supreme Court nominee Brett Kavanaugh were removed for repeatedly interrupting and stalling the hearing; their removal was legal.)

The challenge for city leaders, therefore, is to determine when behavior is actually disruptive. If a speaker asks to be heard about an item on the council meeting agenda, but then begins to rant on another topic, can he or she be ejected from the meeting even if the remarks are confined to the time limit? Is that disruptive or isn’t it?

A second question is whether it is legal to bar people from future meetings based on their past behavior.

Civil liberties attorney Stephen Rohde has already warned that the proposal, if approved, would constitute an unlawful prior restraint. “The greatest fear the founders had was that the government would not only censor you, but prevent you in the future from speaking,” Rohde told The Times. “You cannot muzzle and prevent someone in the future based on what they’ve done in the past.”

Rohde should know. He has successfully sued the city on behalf of past gadflies who were ejected and even banned from attending council meetings. U.S. District Judge Dean Pregerson ruled in 2013 that the city’s enforcement of its rules of decorum was unconstitutional because, while the speakers used highly inflammatory language and profanity, they didn’t disrupt the meetings.

“While the City Council has a right to keep its meetings on topic and moving forward, it cannot sacrifice political speech to a formula of civility,” Pregerson wrote.

The Ralph M. Brown Act, California’s open meetings law, protects citizens’ right to have meaningful input into their local governments’ decision-making, in public at the time and the place where their elected officials meet. That right necessarily includes the ability to critique the performance of politicians, and the right to use profanity and to say some things that are offensive. That’s the price of free speech.

The challenge facing the council is to protect that right while taking reasonable steps to avoid real disruption so that the work of local government can get done.