Dear Mayor Espinosa:
Re: Monday’s (July 18, 2011) city council meeting and related First Amendment issues.
I very much appreciated the manner in which you conducted Monday’s city council meeting and the care and attention you gave to all of the speakers—who came before the council to speak on the issue of the proposed ban on people living in their vehicles.
I do, however–wish to make a few brief comments re the way you handled the oral communication of one of the speakers, specifically Mark Petersen-Perez:
(1) I appreciated the fact that you did not attempt to stop Mr. Petersen-Perez during his three minute talk/presentation to the city council, the live audience and the TV audience.
I believe that both the First Amendment and case law developed in this nuanced area of symbolic free speech/expression–clearly protects symbolic speech –such as turning one’s back on a government body while speaking –or, in fact simply turning one’s back on a governmental body and remaining absolutely silent during the speakers entire allotted 3 minutes.
(2) Certainly you are aware of other protected forms of symbolic free speech/expression-i.e., flag burning and or giving the middle finger to authority/government officials like a police officer, public defender, mayor, etc.
(3) As I have often been heard to say –the First Amendment was not designed to protect popular speech–such speech needs no protection –but, rather– it was designed to protect exactly the type of arguably unpopular, rude or offensive speech –turning your back on authority figures—that Mr. Petersen-Perez engaged in at Monday night’s council meeting.
(4) Turning one’s back to the council is no more or less offensive (no more or less protected by the First Amendment) than speaking directly to the council and expressing one’s anger and defiance in spoken word form. Both forms of expression are entitled to equal respect and standing under our First Amendment (whether we/you like it or not).
(5) Immediately after Mr. Petersen-Perez spoke you made some comments to the live audience, other council members and the TV audience (and correct me here if I am wrong re your words—since I do not recall the exact words— but rather the sentiment expressed) that suggested that Mr. Petersen-Perez had acted inappropriately in not communicating directly with the council when he spoke.
(6) If I am correct – Mr. Petersen-Perez did in fact talk directly to you, albeit–symbolically and arguably defiantly –when he turned his back on the council and spoke directly to the live audience.
Your suggestion that Mr. Petersen-Perez acted inappropriately has a direct and potential impact of chilling not only Mr. Petersen-Perez’s chosen form of First Amendment speech/expression in the future –but that of others who may choose to come before the council and exercise their protected right of free speech in a less than conventional manner.
(7) It would also appear that you did not act in an even handed fashion in your apparent attempt to disciple Mr. Petersen-Perez indirectly by your comments. From my observation– at least 3 members of the city council turned their backs on Mr. Petersen-Perez and the live audience –and then walked off the bench—during his presentation.
Yet at no time did you comment re their symbolic speech/expression. What’s good for the goose is good for the geese—Mr. Mayor—wouldn’t you agree! If not, you leave the distinct impression that you have two sets of rules–one for us—members of public– and another for your cronies on the bench.
****I believe you should make some type of clarifying comment re the above described situation to prevent chilling the speech of future members of the public who come to speak before the council.
****As an aside—although I think it is in bad form– I think the case law is clear that government officials have a First Amendment right not to listen to those who are speaking to them. As offensive as I might find it –when our elected officials walk out on a speaker- I believe such conduct is fully protected by the First Amendment.
I do, however, have a choice in the matter—not to vote for these three nut cases in the future, organize a campaign to recall them—or just let them make asses out of themselves any time they get ready.
****Ps, Ms. Stump [Chief attorney for the city of Palo Alto] please consider jumping into this conversation with your legal views on the issues I have attempted to raise. Thanks.
Up-date: Back by popular demand – Originally published on July 2oth, 2011.
See: Palo Alto City Mayor Engages in a “Clear and present danger” http://bit.ly/hNPa16