In the March Maplewood City News, a taxpayer funded publication that is mailed to every household in the city as well as posted to the taxpayer funded city website, Mr. Hjelle has this to say:
— At the February 11 council meeting, an agenda item was requested by Councilmember Rossbach, he recommended limiting public comments at council meetings to city residents and city business owners only. This action spurred an obvious response from the Minnesota chapter of the ACLU due to the fact that it is clearly unconstitutional. All elected officials in Maplewood swore an oath to protect the Constitution, this action clearly violates the 1st amendment and will result in a lawsuit. I strongly urge ALL residents to contact the new council majority to voice opposition to this attack on personal liberty. If we lose our right to free speech, nothing else will matter.
There is a lot to argue about in this presentation, the two points for today being:
- the false exclusiveness argument,
- the deceptive framing argument.
False exclusiveness
Mr. Hjelle and Ms. Longrie* seem to suggest that the only, exclusive venue available for citizens to exercise their constitutional rights to free speech and petitioning their government is through Visitor Presentations at the beginning of Maplewood City Council meetings. Just spelling it out makes the fallacy obvious, but we can also point out the hidden assumption that a government meeting must provide for this kind of free speech. Since the legislature is in session, you can test this theory by going down to the capitol and trying to get recognized on the senate floor.
Once a government body creates a public forum, free speech rights come into play. But so far as I know, there is no requirement to provide a public forum at a government meeting. Even if there were, there are lots of ways to provide a forum once the decision is made to do so. A televised period of Visitor Presentations at the beginning of Maplewood City Council meetings is not the only way.
Deceptive framing
Mr. Hjelle and Ms. Longrie want us to only think about Visitor Presentations as currently practiced as an exercise in free speech and petitioning one's government. In fact, there are other ways to think about what goes on there. Here is one.
The city council has no power to suspend the rule of law during Visitor Presentations, so it is quite possible that a presenter could violate any number of laws, say for example Criminal Defamation. If that were not bad enough, it is at least possible that the city, and its taxpayers, would share the liability for that criminal act. How? Consider the emerging question of publisher liability. Here is a discussion of web hosting at the University of Texas that illustrates the issues.
Publisher liability recognizes three kinds of actors in a defamatory publication: the author, a distributor (like a bookstore or a cable broadcast service) that does not exercise any editorial control over the content, and the publisher who does exercise editorial control and therefore is potentially liable for the author's defamatory work.
In her role as presider of council meetings, Ms. Longrie demonstrates a substantial amount of editorial control over the content of Visitor Presentations. Examples are only allowing topics that are not elsewhere on the agenda, requiring a name and address, outlawing electioneering, instructing presenters in specific instances to "please don't talk about that", and so on.
Importantly, the city chooses to cablecast these presentations. And, I think even more importantly for this discussion, it rebroadcasts them several times after becoming aware of the content, even content that is potentially defamatory.
Do repeatedly cablecast Visitor Presentations, as currently practiced, put the city at risk of being in the position of publisher of defamatory speech, and therefore liable?
I don't know the answer to that, but I think a prudent city council would ask questions like this.
Stephan
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* In the Alex Davy feature story 'Council to examine visitor presentation process' in the current Lillie Newspapers, not yet online, as well as during the council discussion of Mr. Rossbach's item.
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