May a Vietnam War combat veteran use his three minute speaking opportunity at a local government meeting to criticize Vietnamese immigrants for cowardice in refusing to stay and defend their country? Some Orange County Supervisors didn’t think so and cut him off with a scolding recently. Now the ACLU has filed suit to vindicate his speech rights under the Brown Act and the First Amendment, reports Tracy Wood for the Voice of Orange County.
American Civil Liberties Union of Southern California has filed suit against the Orange County Board of Supervisors for policies that the civil rights group says prevent the public from stating controversial opinions in public meetings.
The suit was filed Wednesday in U.S. District Court in Santa Ana on behalf of William Denis Fitzgerald of Anaheim, who has spoken frequently at board meetings and is a director of the government watchdog group Homeowners for Maintaining our Environment (HOME).
The ACLU wants the federal court to order revision of policies on public comment to make it clear that speakers have a right to make controversial statements, even if board members and others disagree.
Most recently, Fitzgerald, who was a member of the U.S. Army infantry for 11 years and served in Vietnam, was interrupted by Supervisor Janet Nguyen and chastised while making public comments Aug. 23 about the board’s boundaries for new supervisorial districts.
The plan ultimately adopted by the board divided the city of Fountain Valley in order to add more Vietnamese voters to Nguyen’s 1st Supervisorial District. Nguyen was born in Vietnam but came to the U.S. as a child and graduated from high school in Orange County.
Fitzgerald criticized the board for not doing enough to give a stronger voice to Latinos, who constitute about 40 percent of the county’s population.
Then he said U.S. troops fought and died in Vietnam but Vietnamese, who fled to the U.S. after the 1975 fall of Saigon, were “cowards” who should have stayed to fight for their country.
“Defendant (Chairman Bill) Campbell abruptly interrupted Mr. Fitzgerald before his allotted three minutes had expired to give the floor to Defendant Nguyen, who,” the complaint says, “proceeded to berate him purely for the content of his speech, calling it ‘appalling’ and ‘wrong’ and indicating that Mr. Fitzgerald was not allowed to criticize ‘members of any communities coming to this country, this great country, for their freedom and democracy.'”
Fitzgerald said that as he was being chastised by Nguyen, a Sheriff’s deputy who is assigned to the board meetings walked up and stood next to him. Ultimately, Fitzgerald stalked from the room while Nguyen was still speaking.
According to the court complaint, Fitzgerald wanted to speak when the board took up the redistricting issue again on Sept. 6, but didn’t. “Because of the Board’s rule and procedures, as well as their past treatment of him, he fears being silenced again and possibly punished for expressing himself.”
Specifically, the suit seeks an order requiring the board to change Rule 46 and Speaker Guidelines to make it clear the board doesn’t prohibit speakers from expressing their opinions, even if supervisors and others may disagree.
Campbell didn’t return calls seeking comment but Nguyen, in a telephone interview said it was common for board members to interrupt speakers to ask them a question and that the speakers were allowed to continue their comments after they answered the question.
She said she was telling Fitzgerald “you’re free to say whatever you want but let’s not talk about people being cowards or people fighting in vain.
“All I wanted to tell him was ‘look, make all the comments you want. You’re welcome to make comments about me. But you shouldn’t make comments about other people.'”
She said at board meetings “the one thing you can’t do in my opinion is disrespect other people.”
And, she added, “the (Sheriff’s) deputy stood there. He (Fitzgerald) left himself. The deputy never arrested him.”
But ACLU lawyer Belinda Escobosa Helzer, director of the ACLU/SC’s Orange County office, said the board “can’t regulate the content of people’s speech.
“Whether we agree or not with his opinion,” she said, “he has a right to his opinion. He was not disrupting the meeting.”
Supervisor John Moorlach is also named in the suit because of a July 27, 2010 board meeting in which, during the comment period, Fitzgerald criticized the clerk, who also runs the Appeals Board.
Fitzgerald, according to the suit, said the clerk was mismanaging the Appeals Board, costing homeowners unjustified taxes.
Then, according to the suit, Fitzgerald said “‘it is apparent that (the Clerk of the Board) is like the commander of a concentration camp. She is just following the orders of her bosses.'”
The suit says “at that point, Defendant Nguyen (who was board chair) and Defendant Moorlach interrupted Mr. Fitzgerald and at least one of the doe defendants, an Orange County Sheriff’s Department deputy, approached Mr. Fitzgerald and instructed him to leave the podium.
“Defendant Moorlach,” according to the suit, “scolded Mr. Fitzgerald for not being polite, informed him that they were ‘in a position of authority’ over him, and promptly had him escorted from the meeting.”
Moorlach, in a telephone interview, said he interrupted Fitzgerald because he wanted to ask him a question but “Mr. Fitzgerald just wouldn’t stop.”
He said the county has investigated Fitzgerald’s claims of poor performance by the Appeal Board and found they were unwarranted.
“I believe in free speech but you’ve got to balance too,” Moorlach said if speakers are “saying things that are a little over the top that incite people, or you’re trying to.”
“He (Fitzgerald) lights into people,” he added. “I don’t know why they (ACLU) would select this type of client, but if you look at the tape (of the meeting), I was just trying to ask him a question.”
In a related area, the board this year changed its speakers’ policy. In the past, it required those who wanted to speak to fill out a form with their name and the town where they lived.
Such a requirement is a violation of both the U.S. Constitution’s First Amendment guarantee of free speech and of California’s Brown Act, both of which protect the right to address government anonymously, said Terry Francke, who is general counsel for Californians Aware and Voice of OC’s open government consultant.
After Voice of OC wrote about the board policy it was changed to make it optional whether a speaker wanted to give their name.
Now, if a speaker prefers, they can list themselves as “Man from Mars” or any other title “and we’ve had some who do,” said Susan Novak, chief deputy clerk of the board.