Posted November 20, 2006
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Schools may boot critical speakers
By RENA HAVNER / Mobile (AL) Register Staff Reporter
November 19, 2006
The Mobile County school board is considering a new meetings policy that would expel a speaker who attacks "any citizen's good name," and possibly bar that person from addressing the board again for a year.
That would include anyone who criticized a school board member, said the policy's sponsor, Hazel Fournier.
Elected government officials who want to enact policies that prohibit criticism against them. In America. What good did it do for Gorbachev to tear down the wall? The communists are here. These board members deserve high criticism since they can't possibly have "good names."
"When we have a public meeting, why should I allow (someone) to come up and say how worthless Hazel Fournier is?" she said last week.
This comes just weeks after a representative of the local teachers union criticized Fournier and fellow board member Judy Stout in an open meeting, prompting Fournier to walk out of the room.
School board attorney Jim Atchison said that at first glance, Fournier's proposal seems legitimate and that the new provisions would help the board maintain control at meetings.
But some others question whether the changes would stifle free speech.
"These rules, frankly, go beyond anything I have seen in my years of handling media questions," said Dennis Bailey, a Montgomery-based attorney for the Alabama Press Association.
"You can't say something critical about somebody who works for the school board? That goes against the First Amendment."
Fournier said she doesn't mind if people criticize actions of the elected board. She just doesn't want any of the five board members called out by name.
The board for decades has had a policy that prohibits anyone from discussing the "character, reputation or good name of an individual." In the past, if someone mentioned a name, sometimes even in a positive light, that person would be asked to refrain from doing so.
Adding penalties
What's new about Fournier's proposal are the possible penalties.
Fournier presented the changes at a board meeting Tuesday. The board voted to send the revised policy out for public review and will decide whether to adopt the changes at a future meeting.
"I think it's necessary to protect the board, so that we don't provide a public forum for people to attack citizens," Fournier said.
In general, public officials are less protected by law than private citizens from critical or even defamatory speech.
Fournier said she's a citizen as much as she is a public official. She said that if someone wants to criticize her or another board member, they should do it privately.
Who made that rule? People who make decisions that affect the public should be criticized in public when they err.
"I am a citizen first," Fournier said. "I was voted into this position as a citizen of a community. When I leave the board, I will be a citizen."
That's not a rationale.
At an Oct. 28 meeting, Wade Perry, a director of the Mobile County Education Association, questioned why Stout, who was running for re-election at that time, would not say how she planned to vote on Superintendent Harold Dodge's contract.
Perry then accused Fournier of trying to oust the superintendent to get back at him for the impeachment of former board member David Thomas Jr., an ally of Fournier.
Perry recently said he opposes the proposed revisions to the public participation policy and that he doubts the new penalties would hold up in court.
"If they want to be criticized less, they should make better decisions," Perry said. "As long as they're making bad decisions, people should be able to stand up and criticize them for making bad decisions."
The Mobile County Education Association sued the school board in 2004 for shutting down a meeting when a teacher stood up and criticized the board for the amount of paperwork that teachers must complete.
Felt threatened
Board members testified in court that they felt threatened when members of the audience, mostly female teachers, applauded and cheered the speaker, then-Dixon Elementary School teacher Cindy Naylor.
The board stopped the meeting and scheduled it to reconvene the next morning, when the teachers would be in class.
Mobile County Circuit Court Judge Joseph "Rusty" Johnston ruled in favor of Naylor and the association, saying that the board had no right to stop her from speaking.
In his opinion, Johnston stated that the Constitution does not require public bodies to open the floor for public comment at meetings. But once the floor is open, "then those members of the public are exercising constitutionally protected rights."
By opening the floor to discussion, a government entity has created "limited public forum," Johnston wrote, and "its ability to regulate speech within that forum is therefore circumscribed."
That's the law.
The board's current public participation policy allows people to speak to the board on a topic for up to five minutes. Speakers must sign in prior to the meeting, and they are also asked to list the topic of their discussion.
At a meeting in March, the public participation policy was used to prevent a local business owner from voicing support for Dodge.
Tony Moore, owner of the Spot of Tea restaurant, approached a podium to speak about the superintendent. Then-board President Lonnie Parsons told Moore that he was not allowed to talk about an individual.
That's a violation of constitutional rights.
Later in the same meeting, the board voted to begin searching for a new superintendent who would replace Dodge. The board rescinded that vote a few weeks later, following a public outcry.
The Dodge issue came up before the board again this past Tuesday, with the board voting again to search for a new superintendent. The board's choice would replace Dodge on Jan. 1, 2008.
On Tuesday, local activist Robert Battles addressed the board about Dodge, being careful not to mention the superintendent by name.
Battles mentioned the name of President Bush, but then came back and apologized for accidentally saying a name.
Baldwin policy
The Baldwin County school board's public participation policy allows members of the audience who sign up to speak for up to three minutes.
"Historically, the board has always asked for common courtesy regarding remarks, but there's no policy mandating how those comments be made," said Terry Wilhite, spokesman for Baldwin schools.
The Mobile City Council's public comment policy requires people to sign up prior to speaking and allows them to speak for up to five minutes. The only written stipulation is that the person must speak on something involving city government.
Atchison, who had been an attorney for the city of Mobile, said last week that he hadn't fully read Fournier's changes to the policy. He said that the purpose seemed to be to make sure that speakers do not act recklessly.
"I'd think you can be able to control the meeting and that someone would be able to give up the right to come if they break the rules," he said. "There's got to be certain control."
Atchison said that the right to speak is "not unlimited."
"If you get into individuals and start pointing and attacking how an individual handles things, I think it's out of order and not conducive to an orderly meeting," Atchison said, adding that it's the board's meeting, not the public's meeting.
It's the public's board. It's not out of order to criticize public officials. In fact, it's very much in order. The First Amendment was added to the constitution knowing that government officials would soon outlaw criticism if they got the chance.
"The public has a right to be present, and the right to address issues is provided to them. You do so within the rules of that body," Atchison said.
You do so within the constitutional rules of the body.
Bailey said a public body can set reasonable restrictions on public comments made at meetings. But, he said, "You can't open the forum up for public comment only that it's favorable to members of the body," Bailey said. "Certainly people have been asked to leave for speaking out of turn or for shouting or being violent. That's certainly happened before.
"But to tell somebody to leave because they say something critical of a government official or mention a name -- I've just never heard of that."
If the proposed policy is adopted, the school district should be immediately sued.
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