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Editorial | A fine line: Protocols, rules & free speech

By Staff | Feb 8, 2024

Cape Coral City Council updated its Council Agenda Rules of Protocol on Wednesday.

Approved without discussion as part of the Consent Agenda, the changes clarify penalties for members of the public who break Council’s rules of decorum and are so asked to leave the meeting or who are escorted out.

They are pretty stiff penalties.

What Council clarified Wednesday night is its ostensible ability to bar residents who fail to follow the elected board’s rules of decorum from attending future meetings.

According to the new rules, those who are “boisterous or disruptive in any manner to the conduct of a meeting” and so asked to leave will find themselves issued a trespass warning and barred from future meetings, with the length of the ban dependent on whether the person was also arrested.

Those removed but not arrested will be barred from all meetings for 30 days from the date of removal for a first offense as determined by the mayor or other presiding member of Council.

They will be barred for 60 days for a second offense.

A third offense within a year of the first violation will result in being barred for 90 days and will require the person to petition Council “stating the reasons why they can attend Meetings without violating these Rules.”

Council then will decide whether that person will again be “allowed” to attend Council workshops and meetings.

If arrested, the person is barred until a final disposition of the criminal charges related to the ouster. After disposition by the court, the person is required to petition Council “stating the reason(s) why they should be permitted to attend future Meetings with City Council to then “decide whether the person is permitted to attend future Meetings of the City Council.”

A couple of things, first on the rules and then on their placement on the Consent Agenda where Council discussion goes to die as policy is set and millions — millions upon millions — of tax dollars are spent.

First, we understand our elected board’s desire for decorum.

Free speech is guaranteed.

Free-for-alls that disrupt the public’s business are not. Reasonable rules to address disruptive behavior — we will return to reasonable — are not only allowed, but recommended and supported.

The problem is that the line between free speech and disruptive speech can be a fine one and official actions — particularly policies that restrict future access for a decorum transgression for which a governing body acts as judge, jury and rules executioner, can be problematic, problematic to the point that they are unenforceable, i.e. not reasonable.

The Florida League of Cities, an organization to which the city belongs and whose expertise Council touts, has addressed the issue of what governments may and may not do … “to remain committed to finding ways to increase civility, build bridges, and adopt rules of parliamentary procedure that reinforces positive and equitable outcomes for the city and the community, while balancing the public’s right to participate and attend public meetings.”

On Jan. 1, 2023, David Cruz Deputy General Counsel Florida League of Cities, Inc., provided some insight in a “Respectful Public Meetings Memorandum.”

The memorandum, which also provides applicable case law, addresses a variety of topics, including what constitutes disruptive behaviors. Examples cited include interruption of a meeting or the utterance of “fighting words;” being repetitious or speaking on arguments unrelated to an agenda topic or issues unrelated to the governing body’s business; going beyond the allotted time and refusing to leave the podium.

It also provides “Remedies for disruptive behavior,” again providing case law for each:

“You MAY remove disruptive speaker from a public meeting.

“You MAY turn off microphone to a disruptive speaker.”

And a third:

“You CANNOT ban persons who have exhibited disruptive behavior from attending or speaking at future meetings. The government cannot prohibit future expressive activity because of past unlawful conduct.”

The case law cited is Brown v. City of Jacksonville, 2006 WL 385055 (M.D. Fla. 2006).


But we don’t profess to have legal expertise.

We know that case law can change or be interpreted differently.

Perhaps the city has a more applicable reference that gives it — and the taxpayers — a comfort level should a chair-determined rules-transgressor who feels their rights have been abridged challenges being bounced and then barred from future meetings without other redress.

We’d like to hear it before we have to pay for it.

In fact, it would have been nice to hear any final discussion from Council in answer to those who had questions at public input.

Not everything belongs on the consent agenda.

So yes, please answer the unruly public input crowd the rules are intended to control.

Those angry residents are not going away.

Not when they feel they are not being heard.

Not when too many decisions are being made by “consent.”

Not when there are questions hanging.

Breeze editorial