Posted on March 23, 2014 | TallahasseeReports.Com
On Wednesday, March 12, 2014, Mayor John Marks used an electronic kill switch to repeatedly turn off the microphone being used by Dr. Erwin Jackson during the time allotted for citizens to speak to the City Commission.
Dr. Jackson, who has been a frequent participate in the unagendaed speaker portion of City Commission meeting over the last five years, was speaking about a subject discussed two weeks earlier by another citizen.
That citizen was allowed to speak and was unchallenged by Mayor Marks.
However, upon hearing the beginning of Dr. Jackson’s 3-minute speech, the Mayor killed the microphone and stated “personal attacks will not be tolerated.”
After Dr. Jackson tried again to speak on the same subject, again the microphone was cut-off.
When Dr. Jackson tried to move on and discuss a different aspect of the subject, the City’s $35,000 settlement of a lawsuit, Dr. Jackson was again cut off and asked to sit down. When Dr. Jackson did not sit down, the Mayor asked a police officer to “escort Dr. Jackson to a seat.”
The issue Dr. Jackson was trying to talk about involves a lawsuit that was settled by the City of Tallahassee for $35,000 in 2006. The suit, brought by a former City employee, is controversial and complicated, but involves a current City Commissioner, the City Manager and the City Attorney.
The issue was first brought up by the former employee, Harry Brown, not Dr. Jackson. Tallahassee Reports is researching and gathering documents on the issue and will have a report on the lawsuit in the near future.
The City’s Policy
On September 25, 2013, the Tallahassee City Commission adopted City Policy 108 with the stated purpose of providing “for citizen input on propositions pending before the City Commission, Target Issue Committees, Advisory Boards or Committees.”
Also included in this policy was the requirement for citizens who speak to adhere “to a standard of public decorum and may be interrupted by the Chair if said standard is not met.”
The term “public decorum” was not defined in the policy.
Ironically, the City policy was adopted because of state legislation that was passed to require more participation at local government meetings.
Video Review of City Meetings
Tallahassee Reports has reviewed hours of video of City Commission meetings over the last two years. The videos show that Dr. Jackson’s approach is to combine facts supported by documents and to deliver his message in an accusatory tone directed at Commissioners by name on specific issues.
The review found that Dr. Jackson seldom raises his voice, does not use profanity, and respects the three-minute time limit.
However, his approach is confrontational and can make people uncomfortable. The most aggregious comment that we could find happened two years ago when Dr. Jackson referred to Mayor Marks as a “thug in a suit.”
Curtis Baynes, a frequent speaker at Commission meetings told Tallahassee Reports that Dr. Jackson’s confrontational approach “is at times uncomfortable to watch, but that Commissioners tend to respond to Dr. Jackson’s delivery style versus addressing the issues that he brings forward, which often have merit.”
To that end, during the review of the videos, Tallahassee Reports found a number of occasions when City Commissioner Scott Maddox and Mayor John Marks have missed the opportunity to address the facts of an issue and instead, personally attacked Dr. Jackson.
Mayor Marks on separate occasions, in a public meeting, told Dr. Jackson to shut up and called him a stalker and a destroyer. Commissioner Maddox has called him a bully, deranged, and crying out for help.
On the Issues
Dr. Jackson has been an advocate for ethics reform and a critic of a number of specific actions by Mayor Marks and more recently, Commissioner Scott Maddox.
He has had some success with instigating change and garnering support from the Tallahassee Democrat editorial pages and community leaders.
On deferred compensation, ADE, the controversial Honeywell vote, and the use of private investigators by the City, his positions in his three-minute speeches have been consistent with the editorial positions taken by the Tallahassee Democrat.
And more recently, Dr. Jackson’s call for an appointed Ethics Officer was in line with City Commissioner Gill Ziffer, the Tallahassee Democrat editorial pages, Martha Barnett, the former President of the American Bar Association, and former Florida Supreme Court Chief Justice Harry Anstead.
On the Law
Dr. Jackson claims his first amendment rights have been violated. Based on research by Tallahassee Reports, case law and actions by other City Commissions, Dr. Jackson may be right.
In a comprehensive review of the case law related to this issue, Mr. Dan Laidman, an attorney that focuses his practice on media and First Amendment litigation matters, writes that there is a distinction between behavior and content.
Based on the Supreme Court case, Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983), Laidman writes “If the government has provided one of these sites for open-ended expressive activity, then content restrictions are analyzed under strict scrutiny…the government can impose reasonable ‘time, place and manner’ restrictions on speakers that do not relate to the content or viewpoint of the speech.”
The unagendaed speaker portion of the City Commission meetings, that has been in place for years, would appear to be an “open-ended expressive” forum addressed by the Supreme Court and considered to be free of speech restrictions.
Mr. Laidman writes about cases that ultimately allowed speakers to local government boards to wear profanity inscribed on shirts and even spoken profanity used in a presentation.
Also, earlier this year, the ACLU has had success in causing local governments to eliminate the same kind of vague “public decorum” language used by the City of Tallahassee. Responding to objections from the American Civil Liberties Union of Connecticut, the Meriden City Council has changed a proposed rule on comments from members of the public at its meetings. The council discussed prohibiting speakers from “using offensive or abusive language and personally attacking any public officials”. But after receiving a letter from the ACLU, the council, on February 17, 2014, adopted a new rule that prohibits “vulgar, obscene or indecent” language in public comments.
The ACLU of Connecticut has sent similar letters to the Waterbury Board of Aldermen, which imposed and then rescinded a ban on “ad hominem, personal, malicious, slanderous or libelous remarks” in December 2013, and the Winchester Board of Selectmen, which abandoned its prohibition on “personal complaints or defamatory comments” in August 2013.
And finally, Mr. Laidman concludes in his comprehensive review by stating that “Government observers widely believe that the growing influx of campaign money and lobbying in municipal government has created alienation and apathy by making it more difficult for ordinary citizens to participate in local politics. For those who cannot afford campaign contributions or lobbyists, public meetings may be the only opportunity to speak face-to-face to elected officials and to try to influence their votes on matters of pressing importance.”