The city of Cape Coral is facing its first lawsuit pertaining to punitive policies that give City Council the authority to ban speakers ousted from meetings from attending subsequent sessions.

We’re not surprised.

We, in fact, questioned Council’s ability to impose prior restraint on free speech when Council in February amended its then-existing policy — now challenged — to give itself more defined authority to decide if and when speakers deemed to have violated meeting “decorum” rules could attend subsequent public meetings.

We, in fact, pointed out that case law, and even the Florida League of Cities, have found than banning residents from public meetings based on prior actions is not something government bodies may do.

Let us reiterate:

“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,” David Cruz, deputy general counsel, Florida League of Cities, Inc., wrote in his “Respectful Public Meetings Memorandum,” dated Jan. 1, 2023, well before Mayor John Gunter had a 70-plus-year-old Cape Coral resident opposed to the city’s plans for Jaycee Park escorted out of Council chambers for turning his back to the dais.

That resident, Scott Kempe, filed suit against the city in federal court last week, naming the city of Cape Coral, Cape Coral City Council, Mayor Gunter and three police officers as defendants.

In his request for injunctive relief with a jury demand, he alleges his constitutional rights were violated last Oct. 11 when he was ejected from a Council meeting for turning around in his seat, saying when questioned that he did so “since the government turned its back on its people, he was turning his back on them.”

The suit filed with the United States District Court Middle District of Florida alleges the city further abridged his rights through its then-policy of banning ousted individuals from attending meetings until Council voted to “allow” their return.

The city then kept him from subsequent meetings although the then-policy only called for a vote to allow readmittance to the same meeting from which the resident was asked to leave, the suit maintains.

Council changed that policy in February to outline specific penalties for violating decorum rules. The amended policy allows Council to impose meeting bans of 30 to 90 days, depending on whether a meeting attendee left when asked, was escorted out, was arrested, or had been previously ousted for a violation of Council rules.

Repeat “offenders” are required to petition Council “stating the reasons why they can attend Meetings without violating these Rules.” Council gets to decide whether that person will again be “allowed” to attend Council workshops and meetings.

If you are arrested, as Mr. Kempe was after he finally tried to speak at a meeting on Dec. 13 as he said he had been advised that “nothing in the (previous) Rule forbids a removed-person from attending future Council meetings?” You’re barred until a final disposition of any criminal charges related to the ouster. Then you need to jump through the petition/Council vote hoop.

Let us point out that the State Attorney’s Office chose not to file charges against Mr. Kempe, citing a lack of sufficient evidence.

And let us point out how seriously the courts take protection of free speech rights, even when the symbolic expression is a tad more overt than the “peaceful expression” made by Mr. Kempe.

The case law cited by Mr. Cruz is Brown v. City of Jacksonville, a 2006 case.

In it, District Judge Harvey Schilesinger found that the Jacksonville City Council violated the constitutional rights of a resident who approached the podium dressed in an “Aunt Jemima” outfit to “passionately” discuss what she said was inappropriate conduct by Council members in their assignment of contracts to minority business members.

Because her approach “did not observe the Rules of the Council,” the woman was subsequently physically removed, arrested, and then banned from council meetings and workshops for seven “council cycles,” or about three months.

In issuing an injunction enjoining the city from banning her, Judge Schilesinger found that her costumed approach was… “undoubtably political speech deserving of broad First Amendment protection” and also that banning her from future meetings violated not only the First Amendment but the Fourteenth as the ban was an unlawful prior restraint and unconstitutional censorship on free speech and assembly.”

A couple of things.

The Brown v. City of Jacksonville case does not impede a government entity from maintaining decorum.

Governments do have the right to turn off the microphone of disruptive speakers.

Governments may ask disruptive meeting attendees to leave and may have disruptive persons escorted out and/or arrested should they refuse to do so.

As we stated on these pages last month when Cape Coral City Council approved its amended meeting policy without board discussion, free speech is guaranteed.

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

We’re hesitant to offer a layman’s guess as to how the court will rule on Mr. Kempe’s complaint as it seems that legal precedent has become just text on a chalkboard.

But we will voice an opinion:

Mr. Kempe’s silent protest was protected speech.

The city’s continued lack of action that kept him from attending multiple meetings was wrong.

The city’s meeting ban protocol was an abridgement of constitutional rights and it continues to be an abridgement of rights in its amended form.

We urge Council to rescind the ban portions of its decorum policy.

And we urge a quick resolution of this lawsuit.

It is an embarrassing distraction the city neither needs nor can afford.

Breeze editorial