Official can’t demand apology before letting speaker comment

Friday, January 6, 2012

At least at public meetings, the First Amendment means never having to say you’re sorry.

In 2004, Richard Hyde, then the mayor of Waukegan, Ill., refused to allow a citizen to speak during an open forum at a city council meeting until the citizen first apologized to a city employee. That refusal, the 7th U.S. Circuit Court of Appeals ruled on Dec. 22, violated the citizen’s First Amendment rights.

The case, Surita v. Hyde, arose out of a towing ordinance that Waukegan passed in 2002 to allow police to impound vehicles and impose $500 fines on persons driving without a license or proof of insurance. The ordinance generated years of controversy, as protesters claimed the effects of the ordinance fell more harshly on minorities.

During a rally against the ordinance in January 2004, Jose Surita criticized the city’s community liaison officer, Susana Figueroa, for not doing enough to help “her people.” After the rally, Figueroa reported to Hyde that Surita had been very angry, “got in her face” and caused her to fear for her safety.

At a city council meeting two days later, Surita attempted to address the council during “audience time,” when members of the public can speak on any topic for up to three minutes. Hyde refused to allow Surita to talk, calling him “lower than a rat” for his behavior toward Figueroa and requiring that he apologize to her before he could speak.

“[T]his Hispanic lady was confronted with a Hispanic man,” Hyde said. “And how any man could talk to a woman like that, I don’t know. If he was talking to another man like that he’d be decked, right there. … No, I am not going to listen to you until you get up … and go to Suzanne Figueroa and you apologize to her.”

Surita filed suit against Hyde in federal court. Also in the suit, Margaret Carrasco and Chris Blanks brought claims against Waukegan Police Chief William Biang, Carrasco alleging that Biang violated her First Amendment rights by applying an assembly ordinance against her in retaliation for her speech against the towing ordinance, and Blanks alleging that Biang violated his First Amendment rights by enforcing the assembly ordinance against him.

Hyde and Biang asked the trial court to grant them summary judgment on the grounds that they, as public employees, enjoyed qualified immunity against the lawsuit. Qualified immunity protects a government official from liability for damages if the official reasonably believes his or her actions complied with the law.

The trial court denied the requests for qualified immunity. It held that if the plaintiffs’ allegations were believed, then factual issues existed as to whether the Waukegan officials were entitled to immunity.

On appeal, the three-judge 7th Circuit panel unanimously affirmed the denial of Hyde’s motion for summary judgment, but also unanimously ruled that Blank’s claim against Biang could not proceed because Biang was not personally involved in applying the assembly ordinance against Blank. The court ruled 2-1 that Biang was not entitled to summary judgment against Carrasco’s retaliation claim because factual issues existed as to whether Biang had violated Carrasco’s rights.

In affirming the trial court’s ruling against Hyde, the appellate court agreed that the city council, by allowing “audience time,” had created a designated public forum and accordingly could not regulate speech on the basis of the speech’s content.

Hyde’s refusal to allow Surita to speak, the court held, was content-based and thus unconstitutional. Because no reasonable argument could be made that Surita was disruptive at the meeting, Hyde knew or should have known that he was violating Surita’s First Amendment rights, the panel said.

In allowing Carrasco’s claim to proceed, the appellate court noted that Waukegan had never before enforced the assembly ordinance, which required protestors on public property to obtain a permit 20 days in advance and to pay a permit fee. Moreover, the court held, the city could not constitutionally base the fee on the subject of the protest, as “deciding whether a person is speaking in protest or support of a law always involves consideration of viewpoint,” a consideration that leads to “egregious” viewpoint discrimination.

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