The Los Angeles City Council Tuesday postponed until May 6 a vote on a proposal to ban the use of a racial slur and an obscene term for a woman during council and committee meetings.
Elected officials deferred their decision for one week, and later entered a closed session to discuss potential legal ramifications of the proposed rule change. City officials did not report any changes or news as a result of the closed session.
Council President Marqueece Harris-Dawson introduced the motion March 21, which received support from six of his colleagues. It was previously approved by the Rules, Elections and Intergovernmental Relations Committee.
The council and its various committees have been plagued by foul-mouthed gadflies in recent years. A deputy city attorney often explains that City Council members do not condone the remarks, but must allow them under the First Amendment.
But the city must also adhere to the Brown Act and the state constitution, which regulate open meetings for local government bodies.
“These duties come into conflict when some members of the public in their comments to council and its committees use certain offensive epithets,” the motion reads. “At their worst, these members of the public refer to Black members of the public, city staff and council members using the `N-word’ and to female members of the public, city staff, and council members using the `C-word.”’
Council members contend individuals who use these offensive words are doing so with the aim of “offense and injury itself.”
In the motion, council members argue that they have a good case expanding their rules of decorum under what is known as Rule 7, which regulates public comment. The rule says that a speaker who goes off topic or disrupts a meeting would get a warning, followed by censure that could extend to other scheduled meetings for the day. Under the rule change, multiple violations can lead to a three-day ban or longer.
Council members claim they can take action, citing a U.S. Supreme Court ruling in 1942, Chaplinsky v. New Hampshire. The landmark case established the “fighting words” doctrine, limiting the First Amendment’s guarantee of freedom of speech. It set a precedent for regulating speech that incites violence or provokes a breach of peace.
On Tuesday, a group of teenagers and residents from South Los Angeles urged the City Council to ban such foul language.
“As a parent, I think it’s very important that our students are involved with our community,” Wendy Salvador said. “We teach our children to speak respectfully, to lead and to contribute to their communities. They should not be exposed to racist, hateful and derogatory language from public speakers. These words cause real harm and take away from the important work our youth and our community are trying to do.”
Meanwhile, in a letter to City Council, David Loy, legal director of the First Amendment Coalition (FAC), warned that the proposed rule cannot be justified on the grounds that members of the public might believe elected officials condone such offensive terms said during council and committee meetings.
Loy also provided several legal examples that could challenge the city’s position. The city could use or implement a disclaimer to reinforce its disagreement with offensive epithets.
“But the First Amendment prohibits the government from censoring speech because it disapproves of that speech,” Loy wrote in the letter. “FAC respectfully urges the City Council to reject the proposed rule.”
In a phone interview with City News Service, Loy said he understands the council’s concerns and the impact of offensive language, adding that he does not condone the use of such epithets.
“But the problem is that the First Amendment does not allow the government to censor speech just because people don’t like what it says, and that’s just as true whether the speech is highly offensive or not.”
He also argued against the council members’ claim they had a case to prohibit the use of two specific epithets. Loy explained the Chaplin decision established the so-called “fighting words doctrine,” in which certain words for certain speech can be exempt from the First Amendment. He added the doctrine is “very narrow, very limited,” and it does not include speech simply because people don’t like it.
According to Loy, California law prohibits “fighting words” — language likely to incite imminent violence — which can only be evaluated based on the totality of the facts.
“…The government is not allowed to censor in advance across the board…,” Loy told CNS.
If the city moves forward with the rule changes, Loy said there’s a “very good chance” that someone will sue the city. He added that the city would likely end up paying as a result.
Another consequence is that the proposal could lead to a slippery slope, encouraging other local governments to consider their own censorship rules. For example, Loy noted there are people who sincerely believe that Dr. Martin Luther King Jr. preached hate speech. King, an American Baptist minister and civil rights leader, led the civil rights movement, starting in the mid-1950s, to end racial segregation and discrimination against African Americans.
“The problem is that censorship almost always ends up amplifying the objectionable censorship, so it has an unintended effect of giving more air time to the people saying them,” Loy said.
Loy said city officials must uphold the First Amendment. He suggested that local government can respond by issuing a statement condemning offensive language, encouraging attendees to leave the room until speakers finish, or consider a resolution to make their position known.
“Free speech is the oxygen of civil society and the oxygen of democracy, and if we start setting a precedent to censure or silence speech, that road is very hard to stop going down,” Loy said.