An Open Letter to Palo Alto Mayor Sid Espinosa – Who’s First Amendment is this anyway?


Open Letter to Palo Alto Mayor Sid Espinosa

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”


14 Replies to “An Open Letter to Palo Alto Mayor Sid Espinosa – Who’s First Amendment is this anyway?”

  1. How sad it is Mr. James the Palo Alto mayor Sid Espinosa and two attorneys, Larry Klein and Gregory Scharff tasked with defending our constitution are more concerned about city protocol and decorum then with Freedom of Speech.

    “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.

    To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.

    If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.

    Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.”

    Justice Louis Brandeis, WHITNEY v. PEOPLE OF STATE OF CALIFORNIA (1927)

  2. Hi Mark,
    Thanks so much for reminding all of us re the wonderful First Amendment language–left to us by Justice Louis Brandeis–to use as fighting words and in our own self-defense–when government workers ( including political officials) attempt to strip us of our precious freedom of speech/expression.


  3. It seems that the local government is overlooking that it is extreme economic conditions which cause people to choose living in their vehicles, perhaps while waiting the 60-90 days to get in to a shelter. There must be a more humane way of dealing with the urgencies of homelessness.

    The Federal government is a major contributor to homelessness in this country. Anyone applying for social security disability must typically wait 2-3 years before final approval. During this time, an individual may receive public assistance: Monthly allocations vary – from $90 – 200/mo in food assistance, and $319.00/mo in general assistance, only $40.00 of which is allowed to go directly to the individual. The rest goes to a landlord, or a grocery store, or some other entity that is never going to cover the actual costs of keeping a roof over one’s head.

    Palo Alto is full of very very smart, well educated people. Can we put our heads together to see this from a perspective that is solution oriented rather than villianizing the poor?

  4. How NIMBY can we get?

    I’m surprised that the Palo Alto crowd isn’t approaching this differently. Pulling from HP Foundation, Stanford, even Mark Zuckerberg – to come up with money or ideas to address this topic more humanely and proactively than outlawing sleeping in cars. Then the Board members get huffy when their idea isn’t embraced by the public!

    Consider that government members view the electorate as enemies. But in addition, it seems that there is possibly cultural-perspective bleed-through from corrections/criminal justice to those sitting on Boards and/or managing cities/counties. It’s probably so subtle that it just seems part of the role of managing. But inheriting a perspecitve from government leaders who had been always seen the electorate as those who can be manipulated for economic gain… well, why should that change if gov’t officials continue to pocket that gain?

    The theme of abuse, parallel to domestic violence – in which the government wields power AGAINST the electorate, all the while experiencing and believing that this is OK, perhaps because “that’s how it’s always been done.” Systematized institutional abuse, just part of doing their jobs, following the job descriptions, their eyes closed to what is really going on…..and unwilling to have the truth revealed to them.

    Additionally, there is the aura of Bell, Calif that seems to resonate within every local government, albeit to a lesser degree. San Mateo managers get a 3% raise, and again next year – because they haven’t had one in a long time. Terrific rationale. Doesn’t matter that the budget is a mess, that taxes won’t be raised, that programs must be cut to accommodate the managers improving their own economic situation. This is the kind of thing that leads to unrest. Especially by those forced to live in their cars. Those who have nothing left to lose begin to realize that taking action may be the best thing they can do.

    The Palo Alto Board is contributing in their own way to harming the greater Bay Area in all ways – safety, everything.

  5. Unfortunately, Many unhoused residents in Palo Alto and elsewhere in Santa Clara County have died from exposure in during the winter in recent years and the shelters in Santa Clara County are not adequate not only because of supply/demand issues but because they backwardly go out of their way to impose repressive restrictions on the shelter residents that inhibit them from being independent, and misdirect them repeatedly through the revolving door of having to become dependent on “POVERTY PIMPS” such as Innvision and EHC Lifebuilders. Instead of seeking to restrict and oppress, These “POVERTY PIMP” organizations and government representatives need to focus their attention and energy into utilizing whatever opportunity they can find to empower the un-housed and low income community & to help them steer on to the road of success and prosperity. Until then, they will continue to contribute to the problem of poverty and homelessness. This proposed ordinance, if passed will be part of the problem. Not the solution.

  6. Because the opportunity for public comment is so limited, and public officials’ power and influence is so relatively large, it is not just bad form for officials to interrupt or comment throughout the public comment period; in many cities it is expressly forbidden.

    The Mayor and the City Council may agree or disagree with the content or style of public comment, but it is their job to listen to it. If that is more than they can bear, they should step down.

    1. Ms. Denney,

      What was most troublesome, a first time speaker ever, ever to come before city council and during the course of his presentation councilman Patrick Burt got up to show councilman Larry Klein something on his cell phone.

      That was the most discourteous expression and insult from two men who claim to be concerned about the disenfranchised. And Mayor Sid Espinoza sat there in silence. Damn cowards and hypocrites the whole lot of them….

  7. In regard to the First Amendment rights of speakers before the City Council I would like to endorse the wise, reasoned comments of Carol Denney July 23, 2011 9:57 a.m.

    It is impossible to rewind time and replay the incident. If we could my choice would be for Mayor Espinosa to not say anything in regard to Mr. Petersen-Perez posture or position during his remarks. Let’s hope that between Mr. James’ Constitutional concerns and your gentle suggestions, the next time something comparable happens, my vision will be fulfilled.

    I agree with Mr. James, not so much for the Constitutional reasons he mentions but more for the speech-chilling mentioned by someone. The actions and words of the Mayor at a City Council meeting carry a lot of weight. If he implies that someone’s speech act is invalid, substandard, or worth less than the speech acts of others–he is throwing his considerable political weight on one side of the scale, biasing the audience toward one side of the issue, not playing fair.

    I have no direct knowledge of Mayor Espinosa, but I feel safe in saying that he did not intend any of the above and would not knowingly even appear to be conveying any of the above.

  8. While serving several years on Palo Alto’s most socially responsive commission I was frequently disappointed in my fellow commissioners and members of the City Council when it came to the concept of free speech. This is because so often city representatives placed their own internally biased ideas of what constituted morality, decency, decorum, respect, and utility above the thoughts of others based on the manner in which those thoughts were communicated.

    To me, I saw this as a direct violation of the basic right we hold so dear in the United States of America; the right to free speech. Often times, people would come into a commission or council meeting with legitimate concerns or problems only to be dismissed because of the way they spoke, displayed emotion, or the words they used. However, it is every public official’s duty to protect the right of free speech of our citizens.

    Yes, there are practical boundaries to this based on the overall safety of the public at large but one’s own personal philosophies or sensitivities should not in any way encroach upon these boundaries. This holds especially true for public officials as they are supposed to represent all the citizenry, not just a select few.

    With the regard to the matter at hand I personally know both Mayor Espinosa and Mr. Petersen-Perez. I know them both to be very committed to the welfare of our community and strong advocates for the least fortunate among us; both are good men. Thus, it was very unfortunate and disturbing to learn about the incident that occurred at the July 18, 2011 city council meeting.

    I hope that after careful reflection and consideration that Mayor Espinosa and the rest of the City Council recommit themselves to the community in its entirety and to their First Amendment rights. In this way, this incident may serve to bring about a positive change with regard to how the City Council and the Palo Alto citizenry work together for the betterment of our community.

    The above not withstanding I would like to close with perhaps the most salient of points regarding this matter. This is that the real disrespect, the real tragedy, the real affront to decency of the July 18, 2011 city council meeting was not anything that Mr. Petersen-Perez said, but rather it was that Palo Alto has many homeless that are dependent on their vehicles or worse for shelter.

    We should all be appalled by this and be moved to finding a solution regardless of how it is communicated. This is in fact the beauty of free speech; it allows and encourages ideas from every source possible. To stifle free speech is to stifle democracy and freedom.

    1. 7/25/2011
      Hi Donald,
      I am truly moved by your compelling comments. Given your time on the Palo Alto HRC your observations re the importance of public officials being aware of and respectful of the speech of all citizens– who come before them–is particularly relevant and powerful.
      I don’t ever recall another former public official willing to criticize–constructively I might add–other commissioners and city council members for their unwillingness to stand above the fray–and to hold themselves to the high standards the First Amendment requires–if all of our rights to free speech are to be retained and respected.
      Finally–you truly captured the key issue of the night (the July 18th, 2011 city council meeting) when you declared–in your fine letter–that the real tragedy–the American nightmare–is our inability to find reasonable solutions to homelessness–even in this small town of 60,000 people where at least seven billionaires live–something is dreadfully wrong with this picture. And with a great poetic sense–you said it all: in America all voices from all sources should be heard–to do otherwise is to kill democracy. Thanks so much for taking the time to speak-out so eloquently on these critical issues.
      Best regards,

  9. I also find Dr. Mendoza’s letter a fine, well-stated response to the present situation. THAT is the spirit of Palo Alto–generous, inclusive, rights-oriented.

    I’d like to report to all who may be interested in this issue and its progress that a Community Cooperation Team met yesterday (Sunday, July 24, 2011) in College Terrace. We are just beginning. Our work is to address the complaints of the homeowners and rights & needs of the unsheltered in a ways that are helpful for those groups and all the residents of Palo Alto. We will be contacting members of the community, asking for input, and working on proposals to enhance communication, redress the grievances, and in general heal the issues that have divided the Palo Alto community.

  10. Hi Aram,

    Thanks for reminding all of us the first amendment is here to protects unpopular speech.

    I do not know if Mr. Peterson speaks frequently at the council meetings. Unfortunately, I have seen profiling of speakers by council members The net result is regardless of content, the speaker was not heard. This practice is somewhat widespread and not limited to Palo Alto city council. However, in a progressive city like Palo Alto where the council has to serve a very well educated community, one would expect more.

    Like fashion and weather, what is popular, unpopular, and city’s sentiments are surely to change. Smoking and LGBT equality are examples. Listening is the only way to gage and learn.

  11. Hi Ben,

    Wow–your comments-post were extremely well thought-out and very tightly written–not a single wasted word. I particularly appreciated your insight (yet again) that speakers before the city council–and other government bodies–can be profiled, and thus ignored–simply because their speech is unpopular at a given time–despite the fact, as you pointed out–that this same speech–like changing fashions or attitudes—on subject matters like smokers’ rights or rights as applied to the LGBT community—can also shift and change with the passage of time.

    Surely, as you pointed out–in such a compelling fashion–the core of the first amendment is not just the speaking but also the listening. When our government officials seem only to listen to their own voices and those of like minds–then any chance for instituting change benefiting the community at large, as opposed to change only for the benefit of those in power–is unlikely. Thanks so much for your thought provoking comments.


  12. Here is the primacy that the Menlo Park Fire Protection District Board gives to public comments:
    PUBLIC COMMENT #1 (before a Closed session)

    A fundamental element of democracy is the right of citizens to address their elected
    representatives, therefore under Public Comment #1, the public may address the Board on
    any item on the Closed Session Agenda. Each speaker may address the Board once under

    Public Comment

    for a limit of three minutes. The filing of speaker cards is not mandatory, but is helpful in creating
    an accurate record.

    PUBLIC COMMENT #2 (before the Reports and Request in a Regular Session)
    A fundamental element of democracy is the right of citizens to address their elected
    representatives, therefore under Public Comment #2, the public may address the Board on
    any subject not listed on the Agenda. Each speaker may address the Board for a limit of three

    The filing of speaker cards is not mandatory, but is helpful in creating an accurate record. The
    Board can not act on items not on the agenda and therefore the Board can not respond to non-agenda
    issues brought up under Public Comment other than to provide general information.

    PUBLIC COMMENT #3 (after the Regular Agenda items in a Regular Meeting)

    A fundamental element of democracy is the right of citizens to address their elected
    representatives, therefore If you were unable to address the Board under Public Comment #1
    and 2, the public may address the Board on any subject. Each speaker may address the Board
    for a limit of three minutes.

    The filing of speaker cards is not mandatory, but is helpful in creating an accurate
    record. The Board can not act on items not on the agenda and therefore the Board can not
    respond to non-agenda issues brought up under Public Comment other than to provide general

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