Federal court rejects council critic’s First Amendment claims

Thursday, February 7, 2008

A federal judge in Missouri has rejected the First Amendment claims of a man removed from Kirkwood City Council meetings for “repetitive, personal, virulent attacks” against council members.

Charles Lee Thornton had sued the city of Kirkwood after he was arrested twice (and later convicted) for disorderly conduct at two council meetings in 2006.

In May 2006, Thornton had the opportunity to speak during the public-comment portion of a council meeting that addressed the expansion of two businesses — a funeral home and a senior living facility. During the time reserved to discuss the funeral home, Thornton rose to speak about what he alleged was personal harassment of him by city officials, not the expansion of the business. He displayed a large poster with a picture of a donkey and made intemperate remarks about the mayor. Thornton then warned the funeral home owner that the city had a “plantation-mentality” and “jackass-like qualities.”

Thornton engaged in similar conduct after the presentation about the senior living center. He said the mayor was “sitting there looking stupid.” The mayor eventually ordered Thornton to leave the podium and called the police. When the police came to the podium, Thornton sat on the floor and refused to leave. He was arrested and later convicted of disorderly conduct. He has appealed his conviction to a state appeals court.

Similar events occurred at a June 2006 City Council meeting. During the public-comment portion, Thornton was allowed to speak, at which point he began: “Jackass, jackass, jackass … .” Eventually the mayor asked the police to remove Thornton, who again sat on the floor. Once again he was arrested and convicted of disorderly conduct.

Thornton later filed a federal lawsuit, contending that his First Amendment rights had been violated. U.S. District Judge Catherine D. Perry disagreed in her Jan. 28, 2008, opinion in Thornton v. City of Kirkwood. She applied a forum analysis, determining that the public comment portion of the meetings constituted a limited designated public forum that the city could reserve for certain groups and topics of discussion. She did not find the public-comment period to be a traditional public forum in which government restrictions on speech must pass strict scrutiny — the highest form of judicial review.

She noted that there was substantial confusion in the lower courts over the terms “limited public forum” and “designated public forum.” Perry ruled that a limited designated public forum is a subclass of a designated public forum in which restrictions on speech must be reasonable and viewpoint-neutral.

“As the meeting was a limited designated public forum, Kirkwood had the right to restrict the topic of discussion to the expansion of two businesses,” Perry wrote. Rather than addressing germane subject matter, “Thornton engaged in personal attacks against the mayor, Kirkwood, and the city council.

“Any restrictions on Thornton’s speech were reasonable, viewpoint neutral, and served important governmental interests,” Perry wrote. “Because Thornton does not have a First Amendment right to engage in irrelevant debate and to voice repetitive, personal, virulent attacks against Kirkwood and its city officials during the comment portion of a city council public hearing, his claim fails as a matter of law.”

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