Boulder Channel 1

The Case Against Decorum Rules at Boulder City Council

By Seth Brigham, Boulder Channel 1 reporter

On July 14th, 2010, Boulder City Government released their proposed rules of decorum in regard to public speakers addressing the Boulder City Council.

At the start of every Council meeting the public is allowed to address the council for 3 minutes.

At their Council retreat in January of this year, Council members George Karakehian and Lisa Morzel were directed to work with Alicia Lewis and the City Attorney’s office to prepare a recommendation for Council consideration on rules for public participation .

In February, This reporter, Seth Brigham, was arrested while attempting to address the Council in his boxers.

Why would someone address the Council in their boxers, you ask?

Precisely, because of the threats being posed on free speech at that retreat.

They thought up a strange idea, to put regular speakers at the back of the line if they wanted to address Council ?

To address the Boulder City Council one must show up a full hour before the meeting and it’s first come first serve.

Seems fair, and, I hadn’t heard complaints from the public for this change?

As well, an ordinance was being constructed at the time to limit the public’s right to have “naked events.”

Councilman Ken Wilson went so far as to write up scenarios of people being naked in different situations.

This seemed to me a ridiculous waste of the City’s time and a continued pattern by council to control it’s residents, the new ordinance seemed fascist in nature.

And the Council, at that retreat in January, had taken a harsh stance in regard to the rights of public speakers when addressing them, such as recommending the removal of anyone perceived to be making “personal attacks.”

So, I thought to disrobe and send a free speech statement that made fun of such unconstitutional ideas set forth by Council.

This new proposal for rules of decorum…

Is it really about decorum?

Seemingly, I, Seth Brigham, began to criticize the actions of a Council member in the February meeting and was quickly arrested and led away to the County Jail.

Why? In my mind, because they could not stomach what they considered to be ridicule by way of boxer shorts, because, the order to arrest occurred before I could even criticize anyone.

Meanwhile, The City was caught in a difficult position as their actions were caught on videotape and there really was no defense for their actions.

The City stood by the arrest and in their internal report blamed “procedural error,” that George Karakehian had usurped the mayor’s authority by directing the police officer on duty to arrest myself.

The Mayor apologized to the City for the impression that public speakers were not welcome or that their concerns meant nothing to the Council.

They dropped charges of trespassing and obstruction in regard to my arrest, but, never contacted me or apologized to me in any way.

Fast forward to July 14th, 2010, and the PUBLIC PARTICIPATION SUBCOMMITTEE PROPOSED RULES OF DECORUM, that were released to the public.

With a fine tooth comb, so to speak, I will attempt to show you the unconstitutional parts of the proposal, as well as language that has the intent to silence dissent and control the content of what is spoken in Council Chambers by the public.

It also is clearly attempting to silence and make it more difficult for those speakers to be heard who they consider “trouble makers.”

The real danger for our Council is not the disruption of their meetings but how the general public might perceive council members, individually and Boulder City Government as a whole, as being callous to the concerns of it’s residents.

Wish me luck! Here Goes…

Early on in the “drafted proposal” it’s shows to be a transparent attempt to limit dissent and criticism of Council Members and City Management.

The following “rules” are used to intimidate and discourage public speaking at City Council meetings.

If we were to follow these rules, all remarks to the Council would only be allowed to be addressed to the full Council as a whole, and to no specific member.

So, you can’t call a Council member out for unethical or corrupt behavior or if you simply disagree with his or her opinion on a matter???

Further on is a description of speech and behavior’s not allowed at City Council. It might be notes, as well, that these rules would apply to Boards and Commissions.

1. No personal comments? That certainly limits the speaker.

2. No personal attacks? What is a personal attack? Can you define it?

If I call Ken Wilson a fascist and I believed that to be true and a I have several reasons I’d like to express to show that he is in fact a fascist, would that be a personal attack?

3. Impertinent…

1.

Intrusive or presumptuous, as persons or their actions;insolently rude; uncivil: a brash, impertinent youth.

2.

Not pertinent or relevant; irrelevant: an impertinent detail.

3.

Archaic . inappropriate, incongruous, or absurd.

4.

Obsolete . (of persons) trivial, silly, or absurd.

4. Contemptuous

Showing or expressing contempt or disdain; scornful.

If that is the speakers frame of mind doesn’t he or she has a right to express such feelings?

5. Unduly repetitive

I can’t repeat myself, or more like, repeat something they perceive as criticism ???

6. Disturb

1 a : to interfere with b : to upset the natural and especially the balance or relations

2 a : to destroy the tranquillity or composure of b : to throw into disorder c : to put to inconvenience

I think I have a right to disturb. As well, facts and opinion that are submitted through statements can disturb some people and not others.

Disturbing someone could be an appropriate reaction to an appropriate statement.

The Colorado Supreme Court recognized in Bolles v. People, 189 Colo. 394, 398 (1975), that a

Crucial function of free speech under our system of government is to invite dispute. “If

unsettling, disturbing, arousing, or annoying communications could be proscribed ….the

Protection of the First Amendment would be a mere shadow indeed.” Id.; see also Houston v.

Hill, 482 U.S. 451, 462 (1987)(“‘Speech is often provocative and challenging. . . . [But it] is

nevertheless protected against censorship or punishment, unless shown likely to produce a clear

and present danger of a serious substantive evil that rises far above public inconvenience…

To incite an immediate breach of the peace” or “inherently likely to provoke a violent reaction.” See Cohen v.

California, 403 U.S. 15, 20 (1971) and C.R.S. § 18-9-106(1)(a).

As stated, the Fourth Amendment requires probable cause that an individual has committed a

Crime prior to being arrested. ‘Disturbing the Police’ is not a crime, nor is ‘Disturbing the City

Council.’ “A police officer violates an arrestee’s clearly established Fourth Amendment right to

Be free of unreasonable seizure if the officer makes a warrant less arrest without probable cause.”

Olsen v. Layton Hills Mall, 312F.3d 1304, 1312 (10th Cir. 2002).

See Beck v. Ohio, 379 U.S. 89, 91 (1964); see

also Guffey v. Wyatt, 18 F.3d 869, 872 (10th Cir. 1994). (“The right to be free from arrest

without probable cause is a clearly established constitutional right.”).

7. Slanderous

Is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. It is usually, but not always,[1] a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

Is it the Council to decide what is slanderous ( would they even have the facts a hand to make an instant decision of slander? ) or up to a person who feels “slandered” to take action, as in filing a civil lawsuit

8. Assuming negative motives of another… Stopping the speaker because you believe he or she might say something that would be negative? To whom?

This is called thought police. What if a speaker say’s something that might show the Council in a negative light?

As you look further into the contents of the “Decorum Proposal” it states that a verbal warning by the presiding officer/Mayor is not required for an order of removal.

Sorry, no second chances! Do not question, be removed!

9. And, the there’s the banning of masks and, of course, no disrobing!

But the law allows for semi-nakedness and who’s been hiding under a mask at a City meeting lately???

Perhaps, the City is masking it true intent, a negative motive to silence speakers who they don’t see eye to eye with?

What next? We can’t wear a hat or we must wear business suits to address the Council, or better yet, a Boulder County Jail suit to make it easier for the transition from City Council Chambers to the Boulder County Jail!

10. You must remain seated!

Do we have to raise our hand for permission to go to the bathroom?

And, the City Council, will they still be allowed to come and go as public speakers express themselves, as they often just wander off, as if the meeting doesn’t start until they have their say…

Now for the punishment…

1. Any person could be charged with a crime.

2. Council may prohibit you from returning to Council for 30 days or more.

3. Council could vote for longer bans, even permanent, if you are “caught” being insubordinate on more than one occasion within 2 years.

Then there’s the ongoing squeeze on Public Speaker’s minutes because the City Council really don’t want to hear from the residents.

The Boulder City council wants to institute rules they already have implemented that decreases the amount of time a public speaker can speak,

Cutting down speaker minutes from 3 to 2 if 15 or more speakers show up, and, if you get 2 extra co-signers, you no longer have 5 but a 3 whole minutes to address Council. Wow!

We have so little voice as it is, and, they want to prohibit the free expression of it !

And, they are setting up a system where regular speakers are forced to speak after residents who haven’t spoken in the last 4 meetings.

Why? To discourage those highly involved residents who tend to be more critical from speaking because now they have to wait as long as one, two or more hours before being allowed to speak.

What was wrong with showing up at 5 PM, signing up, speakers are chosen first come first serve… And meeting starts at 6 PM.

Why does the City Council want to interfere with this fair process?

That is the target of this Decorum proposal, regular speakers like myself who are highly critical of Boulder City Council and City Management.

Meanwhile, rules of decorum for Council, Boards and commissions members differ than that of public speakers.

The proposal only suggests that Council, board or commissioners avoid personal attacks and that members shouldn’t assume motives of others.

Quite ironic, that one rule for Public Speakers is that the Mayor or Presiding Officer stop someone for going down that scary road of possibly having a negative motive.

I find the Decorum Rules as being in that class, a negative motive to shut up dissent and punish those who will not shut up! At least in regard to anything they don’t want to hear from the “little people” of Boulder.

The United States Constitution and the Colorado Constitution protect the right of freedom of

Speech and assembly for all citizens. The First Amendment of the United States Constitution

provides that “Congress shall make no law. . .abridging the freedom of speech. . .or the right of

The people peaceably to assemble and to petition the government for a redress of grievances.”

Article II, Section 10 of the Colorado Constitution further provides that: “No law shall be passed

impairing the freedom of speech, every person shall be free to speak, write or publish whatever

He will on any subject. . .”

Political speech in particular holds a “high rank” in the “constellation of freedoms guaranteed by

Both the United States Constitution and our state Constitution.” Bock v. Westminster Mall Co.,

819 P.2d 55, 57 (Colo. 1991). The Colorado Supreme Court noted in Bock that:

The United States Supreme Court and this court have been extraordinarily diligent in

protecting the right to speak and publish freely. Whether this is because free speech has

been conceived as a means to the preservation of a free government or as an end to itself,

The results have been the same. Free political speech occupies a preferred position in this

Country and this state.

Id. The Colorado Supreme Court in Bock goes on to state:

Those who won our independence . . . believed that freedom to think as you will and to

speak as you think are means indispensable to the discovery and spread of political truth;

. . . that the greatest menace to freedom is an inert people; that public discussion is a

political duty; and that this should be a fundamental principle of the American

Government.

Bock, 819 P.2d at 57, citing Whitney v. California, 274 U.S. 357, 375 (1927).

The Colorado Constitution provides an even broader protection for free speech than does the

United States Constitution. Bock, 819 P.2d at 58-60. Article II, Section 10 of the Colorado

Constitution contains “an affirmative acknowledgement of the liberty of speech, and therefore

[is] of greater scope than that guaranteed by the First Amendment.” Id. at 59. The United States

Supreme Court and Colorado Supreme Court have been extraordinarily diligent in protecting the

right to speak and publish freely, and free political speech occupies a preferred position in this

Country and this state.

My understanding is that certain members of the Boulder City Council have publicly defended their decision to put these rules into law, while also telling the press that they have no intention of inhibiting free speech.

Tom Carr, Boulder’s recently appointed City Attorney…

“The way the rules are currently structured … the only way the council would stop someone is if the behavior actually disrupted the meeting,” he said.

So why set up unconstitutional rules, why get so “excited” about decorum rules? By writing up fascist rules of behavior/speech, Mayor Osbourne?

Is this the direction you want in regard to deciding the fate of a resident who addresses the Boulder City Council about their concerns?

The Colorado Supreme Court recognized in Bolles v. People, 189 Colo. 394, 398 (1975), that a

Crucial function of free speech under our system of government is to invite dispute. “If

unsettling, disturbing, arousing, or annoying communications could be proscribed ….the

Protection of the First Amendment would be a mere shadow indeed.” Id.; see also Houston v.

Hill, 482 U.S. 451, 462 (1987)(“‘Speech is often provocative and challenging . . . . [But it] is

nevertheless protected against censorship or punishment, unless shown likely to produce a clear

And present danger of a serious substantive evil that rises far above public inconvenience.
See Cohen v. California, 403 U.S. 15, 20 (1971) and C.R.S. § 18-9-106(1)(a).

Seth Brigham

1580 7th St.

Apt.

A

Boulder, Colorado

80302

720-298-6711