The Constitution of the United States does not guarantee its citizens the right to say what they want, when they want, or where they want.
The First Amendment protects the right of Americans to express opinions without government censorship or control. It guarantees the right of the people to peacefully assemble and to petition their government for a redress of their grievances. It protects only one industry…the press.
The First Amendment is the cornerstone of democracy. It protects equally the speech you like and the speech you dont. It protects everyone or it protects no one.
So, what should people do if a local government agency makes it abundantly clear that government censorship is not only something they recommend, but is somehow the moral thing to do. I know what I do. I stand and fight. In this, I will not yield!
The Colusa City Council last week didnt exactly cement such a notion as government censorship into law; the city attorney didnt let them cross that line. But they did approve a policy that recommends members of the council restrict negative opinions on social media about the city and its employees. At the very least, the policy recommends the publics elected representatives defend and preserve the honesty and moral uprightness of the institution and its employees at all times. Talk about a short memory.
The citys policy recommends ” as ethical guidance only ” that councilmembers take part in two forms of censorship deemed unconstitutional by the U.S. Supreme Court: content discrimination and viewpoint-based discrimination.
For example, the policy asks elected representatives specifically not to discuss proposed positions or departments, which would be content discrimination. Hypothetically, it means a member of the council should not ask his or her constituents whether the publics money should be used to invest in a new police officer or whether they should consider a circus performer who makes balloon animals (but is the second cousin of a high-ranking official) to lead a new policy enforcement division.
The new social media policy also recommends viewpoint-based discrimination. The policy suggests elected representatives should present their comments or opinions to a subordinate senior staff member for approval before presenting them to the public. One could guess what opinions would likely be allowed.
The City Council certainly had an understanding that their new censorship policy didnt have the teeth to actually supersede the Constitution of the United States or dozens of Supreme Court decisions. As one councilmember put it, the policy just uses words like should, not shall or must.
The policy, however, is not entirely void of consequences. Violations, according to the city attorney, could subject an offender to public censure by his or her peers. The City Council could puff up their chests, pass a resolution affirming their displeasure (in a properly noticed meeting, of course), and have it preserved in the annals of history. Im not sure what, if anything, that would accomplish. It would probably be more fun if the city just went back to the days of building stockades in the Town Square. They could hire a band, sell beer and street food, and pass out rotten tomatoes with which the public could pummel blasphemers and heretics.
On the other hand, the City Council recognizes that social media is a cesspool that people swim in at their own risk. Its not the best platform to discuss the particulars of city business, unlike open, properly noticed, and welcoming meetings and workshops, whether they are held virtually or in person. Other options include properly noticed joint or individual Town Hall meetings that inspire more thought-provoking debate. Why wait until elections roll around? There are also opportunities to reach a broader audience than social media alone with guest editorials in a local newspaper, letters to the editor, or personal newsletters.
The councilmember who originally requested the communications policy be addressed had rightful concerns that new Brown Act restrictions prohibiting social media engagement between two or more members of a legislative body would allow one person to unfairly speak for others, the city, or the council as a whole. But neither the policy nor other reasonable options were offered to address the councilmans concern. Instead, the policy ” written by the senior staff ” simply dismissed the councilmembers directive entirely and granted greater policing authority to, you guessed it, the senior staff.
And once again, the people on the dais were positioned to either vote for or against something without adequate direction or fruitful discussion on the pros, cons, or repercussions of centralizing the control of their speech.
The fault is not entirely with the members of the council. These are good, decent, well-respected, hardworking, well-intended individuals who want to do the right thing. Its not entirely just the fault of the staff.
The fault is that Colusa refuses to function as a general law council-manager form of government ” guided by the legal codes of the State of California ” with checks and balances that help ensure decisions are carefully weighed, measured, deliberated, debated, and decided in public for the publics benefit.
Colusa functions as a council-staff-crony form of government, with overall contempt for the checks and balances that allow other local legislative bodies, administrators, department heads, and staff to work together as transparently as possible with the public. The County of Colusa and the City of Williams, for example, perform to the greater extent as well-oiled machines. As humans, mistakes might be made, opinions might change, decisions might be reconsidered and reversed, or people might just agree to disagree before moving forward.
Without those checks and balances, the turmoil in Colusa leads to either real or perceived dysfunction, chaos, and corruption. The public wants the in-fighting on the council and within the community to stop, but the fighting is never about the actions taken by the council; the fighting is always about the options that are blocked from being discussed or considered.
The fighting is never about the information presented to the council; the fighting is always about the information that is hidden from the public.
The fighting is never about what is on an agenda; the fighting is always about what is decided behind closed doors.
The fighting is never about preserving open government; the fighting is always about letting go of the tightly held reins that protect closed government.
When matters are presented to decision makers ” and the public ” in a way that an outcome is predetermined, then the opposition is deafening. Thats the rumble everyone hears in the community. But in Colusa, the outcome is as unsuccessful in the end as cats in a gas chamber clawing to the top for the last breath.
If government officials only see silencing the opposition (and the press) as a solution, then they dont quite grasp the nature of the problem.
If its against the law for the government to censor speech, then the government shouldnt suggest censorship as an ethical recommendation to curb the publics discontent. It is no different from the government admitting that following an opponent into a dark alley to break his or her kneecaps is against the law, but still recommending it as a practical way to preserve the citys mode of operation.
As could have been predicted with any rule made to be openly violated, a member of the City Council ” soon after the vote ” quickly flaunted his defiance to the policy on his social media page. And, as if on cue, a member of the protected class, an elected official on another Colusa agency, quickly followed the councilman down that dark alley, dragging a Colusa businesswoman with oppositional opinions into the sewer for good measure, before attacking this newspaper, also a Colusa business, and me personally on multiple platforms.
While she likely got the accolades she desired from her followers, Im not certain that she got the reaction she wanted from mine or from the public in general. My family and friends are used to seeing mugshots of my dogs, funny videos, and photos of my grandson on my social media page, not a vile attack on a free and independent press or on individuals with the same rights under the Constitution as she.
My 77-year-old sister wanted to fly down from Seattle and handle it her way. (Shes old-school Maxwell, a former newspaper columnist, and has very protective instincts for the baby of the family.) My best friend from sixth grade in Oregon, my daughter in Louisiana, my college roommate in Utah, and others living thousands of miles away just made popcorn and waited for the show to start.
My friend Nip posted his response to the unexpected and unnecessary drama with intellect and reason.
” Civil discourse is an asset in a democracy,” he said. ” Verbal assault, intimidation, and threats to life and limb is an age-old criminal practice. If one can control the media, you can control public opinion. Pendergast used it when his mob was running Kansas City in the 30s. Goebbels adopted the same practice. If you tell a lie long enough, people will believe it.
I dont know if the City Council will get the results they desire from their new policy, but any rule that would allow the government to essentially take sides in a debate is especially offensive to the First Amendment. Such restrictions should be treated as unconstitutional.–