An attempt by San Diego County Supervisors to rein in the almost routine insults, racist statements and wild accusations made during public comments is being challenged in court.
Supervisors imposed new rules on public comments in November 2022 after incivility escalated during the pandemic. The alterations were made immediately after San Diegan Jason Robo referred to then-county public health officer Dr. Wilma Wooten, who’s Black, as a “f-ing Aunt Jemima.”
The nonprofit San Diego-based Project for Open Government is suing the county, alleging that the changes made in November 2022 were unconstitutional.
“I don't agree with the reprehensible and just repugnant comments by people at times,” said Project for Open Government President Mat Wahlstrom. “But they overreacted.”
Specifically, his watchdog group objects to a change that allows the chairperson of the board of supervisors to reprimand a member of the public if their statements are deemed “discriminatory or harassing.” The change was made to the county’s Rules of Procedure document, which outlines how supervisors should conduct public meetings.
“The problem is with the definition of discriminatory or harassing remarks,” said lawyer Cory Briggs, who represents Project for Open Government in its lawsuit against the county. “You are allowed to be critical of public officials and public employees. We can criticize the government strongly. This definition now allows one person, the chair of the board, to decide that he or she doesn't like the comments that are being made, and even if they're legally protected under this definition, can say, ‘Stop.’”
Briggs frequently sues local municipalities and has been criticized for starting multiple nonprofits to file those lawsuits.
The county did not respond to requests for comment. But its document highlighting the changes does have a specific definition for discriminatory or harassing remarks. It says they are “legally protected speech in a board meeting that disparages an individual or group based on their perceived race, religion, sexual orientation, ethnicity, gender, disability or other hate speech but does not rise to the level of a criminal threat or inciting violence.”
Project for Open Government’s lawsuit against the county illustrates how tough it is to bring order to unruly meetings without trampling on free speech rights.
Public comments at supervisors’ meetings have grown more uncivil since 2021, a year into the pandemic, according to a KPBS analysis. Citizens openly mocked supervisors, swore at them and had routinely accused them of engaging in criminal conduct, such as murder and trafficking, and alleged they’re pushing a “satanic agenda.” The regular verbal assaults have chilled public policy discussions and dissuaded some San Diegans from attending because they are repelled by the nastiness and the possibility of being heckled for their views.
The tone and language is echoed at public government meetings across the county and the country. Experts blame COVID-19 vaccine mandates, the pandemic lockdown, the spiraling cost of living and a permission structure created by former President and current presidential candidate Donald Trump, who regularly attacks political rivals, women and people of color.
“I don’t want to blame Donald Trump for everything,” said constitutional scholar and UC Berkeley Law School Dean Erwin Chemerinsky, who has advised local governments on managing ugly public comments. “But I think Donald Trump has played a key role in changing the nature of discourse by making it acceptable to be transgressive in a way that we’ve never heard before in public, to say things that we’ve never heard in public. And I think people follow that example.”
Chemerinsky, who is not involved in the lawsuit against the county, said supervisors can clamp down on disruptive behavior by members of the public. For example, they can stop people from shouting over others who are speaking.
“If the public comment is getting out of hand, they can certainly limit the amount of time that they're going to devote to public comments,” Chemerinsky said. “But the difficulty is that they can't say we're going to have a civility code for how to speak. They can't say no profanities. They can't say no ethnic or racial slurs because that's protected by the First Amendment.”
David Loy of the First Amendment Coalition, who also isn’t a part of the lawsuit, said those Constitutional protections ensure that the government can’t crack down on dissenters.
“This is why we have a First Amendment to ensure that we do not allow the government to censor people based on their viewpoint,” Loy said. “And sometimes the price we pay for that is we have to tolerate speech that we don't like. We have to tolerate speech that we hate.”
Briggs said the case challenging the county’s rule change governing public comments at supervisors’ meetings could go to trial later this year.
