By Sarah Mancuso.
City of Surprise Council Meeting Leads to Arrest
On August 20, 2024, the City of Surprise City Council had Rebekah Massie forcibly removed from Council Meeting and arrested for trespassing in front of her ten-year-old daughter. Surprise’s City Council meetings include a “call to the public” where each person in attendance who fills out a Call to the Public form is allotted three minutes of time to speak. Massie was removed for violating Surprise’s long standing rule prohibiting members of the public from using their allotted speaking time to level “complaints against any employee of the City or members of the body” (the “Rule”).
Because the meeting agenda addressed raising the City Attorney’s salary, Massie used her time to speak out against the raise and explain why she thought the raise was inappropriate. She specifically voiced concerns that the City Attorney had violated state law. The mayor interrupted her (before her time was up) to give her a warning that she was violating the Rule by criticizing a city employee. When Massie expressed that the Rule violated her First Amendment rights and refused to stop speaking, the mayor ordered a police officer to remove her. The officer removed Massie under protest and ultimately arrested her for trespassing.
Massie Sues Surprise
Massie is now suing the City for violating her First Amendment rights. She argues that because the Rule prohibits complaints about city officials while allowing neutral or positive speech about those officials, it is unlawful viewpoint discrimination. The Ninth Circuit noted in Norse v. City of Santa Cruz that the First Amendment only permits content restrictions in a public forum when they are viewpoint neutral and reasonable considering the forum’s purpose.
According to Massie, the Rule is not viewpoint neutral because it prohibits an entire category of speech—complaints against public officials—while allowing positive remarks about those public officials. She also claims that the Rule is not reasonable because one of the purposes of a public comment period is to allow members of the public to address their concerns (including those regarding elected officials). If the court agrees that the Rule is impermissible viewpoint discrimination under the First Amendment, then the City will need to satisfy strict scrutiny by showing that the Rule serves a compelling government interest and is narrowly tailored to address that interest.
The City responded to the lawsuit by voting to repeal the challenged Rule. Even though the Rule no longer exists, Massie still intends to go forward with the lawsuit, partly because, as her attorney says, “[c]ities need to be punished when they violate” First Amendment rights. Her attorney also stated, “Other cities should see what’s happening in Surprise right now and take heed . . . . If other cities have a similar rule, it’s time for that rule to go.”
Which Arizona Cities Need to “Take Heed”?
Glendale, Tempe, and Paradise Valley all have rules for their city council meetings analogous to the Rule at issue in Surprise. Glendale’s speaking policies declare that “[p]ersonal attacks on Councilmembers, city staff or members of the public are not allowed.” Tempe’s policy includes a rule stating that “[p]ersonal, impertinent or slanderous remarks, including profanity are prohibited.” And Paradise Valley’s rule (which is almost identical to Tempe’s) states, “Any person making personal, impertinent, or slanderous remarks . . . and who fails, upon request of the presiding officer to cease such activity, shall be barred from further audience before the Council.”
Depending on how Massie’s case turns out, these rules may come under fire. Glendale’s rule is like Surprise’s because Glendale specifies that “personal attacks” are not allowed (but allows positive or neutral comments), while Tempe and Paradise Valley ban all personal remarks. Therefore, Tempe and Paradise Valley council meeting rules may be safe from a First Amendment challenge because they are viewpoint neutral – all personal remarks are banned, not just negative ones.
State Senator John Kavanagh requested that the Arizona Attorney General investigate the Rule but has since withdrawn his request (likely because the Rule was repealed). However, as a part of his request, he attached an email from the General Counsel for the Arizona Legislative Council saying that the Rule “probably conflicts with” Arizona’s Open Meeting Law. Because the Arizona Legislative Council believes such a policy may be unlawful, the court in Massie’s case might follow suit.
Conclusion
Notably, Arizona law does not require city councils to provide the public an opportunity to speak during their meetings at all. Under the Open Meeting Law, public bodies are allowed to provide an open call to the public but are not required to. In theory, Arizona cities and towns could remove the call to the public completely to avoid potential liability and situations like Massie’s. That seems unlikely, however, because removing public participation sounds like a great way to get voted out of office. What elected official wants to be the one with that on her record?
Sarah Mancuso is a staff writer for the Arizona State Law Journal from Bowie, Maryland. Before attending law school, she attended Arizona Christian University where she earned a B.A. in Family Studies with Behavioral Health and Political Science minors. She also spent three years prior to law school working in government. Sarah’s legal interests include civil litigation and real estate law, and in her free time, she enjoys listening to podcasts and painting.