A South Bend Common Council bill that would place new restrictions on what the public can say at meetings is drawing opposition from critics who say it’s unconstitutional.
The bill, co-sponsored by council President Sharon McBride and council member Karen White, would change Privilege of the Floor. That’s the part at the end of the meeting where anyone from the public can come to the microphone and speak their mind. You’re limited to three minutes and you can’t address topics that were covered on that meeting’s agenda.
The council has ended its meetings with Privilege of the Floor since at least 1973, and people have been following these rules since they were formally adopted in 1998.
But since Covid ushered in virtual meetings, more people are attending virtually, and so more people are speaking at Privilege of the Floor. So “restated and revised expectations of speakers have become necessary…” according to the bill’s Statement of Purpose and Intent.
Specifically, the bill would prohibit speakers from talking about things that other people already have mentioned at the meeting. It also requires comments to be addressed to the council as a whole and not individual members.
At-large council member Oliver Davis opposes the bill. He says council members need thick skin, and he’d rather hear more than less from the people he’s elected to represent.
"That's the way of a public official," Davis said. "People come up to me and tell me how much they love me sometimes and then other times they come up to me and tell me what I need to improve on. And that's fine, it's fair."
Davis says when Covid ended and people began attending meetings in person again, he didn’t mention any names but council members started to complain about criticism they’re receiving during Privilege of the Floor. He says it bothered them more to hear it in person.
"It has really been concerning to me that when some people speak, you will even hear council members challenge them or interrupt them during the Privilege of the Floor," Davis said. "That is not the nature of that. The nature is they should be able to share. So now there is a movement to limit that, and I just have strong feelings against that."
The council heard first reading of the bill Nov. 25 and it had been set for a public hearing and final vote for Dec. 9. But the council unanimously passed Davis’ motion to move the hearing and vote to the Jan. 13 meeting.
Black Lives Matter South Bend, frequent critics of McBride, also opposes the bill and took their concerns to the American Civil Liberties Union of Indiana. The organization agrees. ACLU Indiana attorney Ken Falk sent the council a letter stating his objections.
Falk says the longstanding rule against speaking on things that were already discussed on the agenda is OK because it’s content-neutral and equally applies to all speakers. But the bill’s ban on repetitive comments would constitute “viewpoint discrimination.” In other words, the government cannot subjectively restrict speech based on its content.
"Well here you're saying, we're going to look at what you are saying and we're going to assess whether it's been repeated or been made before or not made before, and based on that viewpoint discrimination, we're going to decide whether you can speak or not," Falk said. "We think that's not constitutional."
Falk adds that any restrictions on speech have to be reasonable. But banning “repetitive” comments is too vague and would give council members too much power.
"One of the things about the First Amendment is that if you are restricting speech, you can't do it in a way that's vague because vagueness allows, in this case the council, to decide what they want to hear and what they don't want to hear.
"Does it mean you can't say word-for-word what the person said before you? I doubt that's what it means. Does it mean you have to be completely different from anyone else that's already spoken? Again, that doesn't make any sense."
Neither McBride nor White responded to WVPE’s messages seeking comment over multiple days this week.
