William Fitzgerald loses his lawsuit appeal against OC Board of Supervisors

William Fitzgerald, Photo: OC Register

William Fitzgerald, Photo: OC Register

From the Orange County Register this morning we have this tidbit of good news:

A federal appeals court ruled Thursday that an Anaheim man’s First Amendment rights were not violated when his speech drew strong reactions at Orange County Board of Supervisors meetings. The 9th U.S. Circuit Court of Appeals also upheld a board rule barring “personal, impertinent, slanderous or profane remarks” at public meetings. But the court made its ruling “unpublished,” meaning it does not set precedent for future cases.

William D. Fitzgerald testified that he was intentionally “abrasive” when speaking before the board in 2010 and 2011, comparing the board clerk to a concentration camp commander and later using the phrase “cowardly Vietnamese” when discussing a redistricting proposal.
At both meetings, supervisors interrupted Fitzgerald and a sheriff’s deputy approached him, videos of the meetings showed.

Read more here (the story is thankfully outside the Register’s pay-wall).

This ruling makes it at least a bit more clear as to whether or not speakers can be interrupted when they fail to follow rules of decorum established by public agencies for public speakers. Of course, anyone can sue for any reason, so whether or not this has any practical effect in emboldening mayors, board chairpersons and presidents to challenge speakers when they fall out of line.

  15 comments for “William Fitzgerald loses his lawsuit appeal against OC Board of Supervisors

  1. Daniel Lamb
    April 18, 2014 at 10:41 am

    Interesting Chris…

    But you are right to draw attention to the unpublished nature of the ruling. But even if it was published, the law of the land would have been unchanged as the standard has been clearly described by the Supreme Court …. ACTUALLY disruptive, not offensive or shocking or hateful, ACTUALLY disruptive.

  2. Greg Diamond
    April 18, 2014 at 11:04 am

    From the Register’s article, Chris:

    “At both meetings, supervisors interrupted Fitzgerald and a sheriff’s deputy approached him, videos of the meetings showed.

    “But the appeals court wrote, ‘… the record shows that at both meetings, Fitzgerald departed the speaker’s podium of his own accord. Thus, he did not suffer injury at either meeting.’

    “The appeals court said the judge erred in ruling that Fitzgerald had no standing to challenge a board procedural rule that says people who make “personal, impertinent, slanderous or profane remarks” can be barred from speaking or removed from a meeting.

    “But because the county has said the rule would be enforced only if a speaker’s conduct actually disrupted a meeting, the appeals court found the rule constitutional.”

    So, actually, he won the appeal on the question of his having standing to challenge the policy, but he lost the appeal because he did not suffer injury, which the court ruled would have required his refusing to give up the podium and instead being arrested.

    I don’t know if this news is quite as good as you think, Chris — because if Fitzgerald is willing to go to jail over it next time, this opinion (judging only from the Register’s summary) seems to state that he might then have a case!

  3. Ryan Cantor
    April 18, 2014 at 2:36 pm

    Agreed.

    This is actually not news.

  4. junior
    April 18, 2014 at 6:13 pm

    Perhaps this result will give Tait an infusion of spine.

  5. Greg Diamond
    April 18, 2014 at 7:43 pm

    Tait has repeatedly sought his City Attorney’s advice on this matter — live, during public meetings — and the City Attorney has repeatedly taken the position that speakers have a protected right to say whatever they want at the microphone.

    So, your definition of “spine” is to get the City into an unnecessary lawsuit against the explicit advice of its City Attorney. You could not be a bigger idiot if you were standing on a high chair.

    • April 20, 2014 at 8:22 am

      I’m sure you’d be pleased to represent Mr. Fitzgerald in an unnecessary lawsuit against the city Greg. You are doing that now in spite of legal advice given to the council by the same city attorney Tait turns to whenever he needs an excuse not to bang the gavel. No mayor in OC has lost control of the council chambers the way Tait has.

      • Ryan Cantor
        April 20, 2014 at 12:22 pm

        Ah, the “lost control” thing again.

        Last I checked, speakers are kept to their three minutes and disruptions don’t occur on a regular basis, like you’d like your readers to believe.

        Dan, you don’t agree with how citizens in Anaheim choose to speak for themselves. That’s a far cry from actually tolerating disruptions, which is what losing control really means both according to the law and past practice.

        Controlling the content of speech is censorship. If you believe other OC mayors are actually repressing the content of speech (and that you think that’s a good thing), I suggest you move to Eastern Ukraine. That type of thought is really in demand there at the moment.

  6. Junior
    April 20, 2014 at 8:01 am

    It isn’t like you Greg to employ invective – there must be something else bothering you – something weighing heavily on your mind ……

    • Greg Diamond
      April 20, 2014 at 11:49 am

      Arguing the fine points of law with you, Dan, is like arguing the fine points of oral hygiene with a Komodo Dragon.

      I suggest that if you want to figure out whether Houston’s position is correct, and whether CATER’s lawsuits against Anaheim are meritorious, you contact your smart lawyer and pay her to write you an opinion letter. Meanwhile, decide whether you trust Michael Houston’s legal opinions, or you don’t. (I trust them when he’s right; but unlike you I have opinions based on fact rather than self-interested wishes.)

      No lawsuit is strictly “necessary,” as one can always give in to injustice. (That sort of thing pleases your friends.) You meant “inappropriate,” I presume. I’ve never filed an inappropriate lawsuit yet — although you’re in no position to understand why — and you have no will to do so either.

      Now go back to enjoying the company of junior, your political soulmate.

      • April 21, 2014 at 12:52 pm

        “Dan, is like arguing the fine points of oral hygiene with a Komodo Dragon.”

        I crown you king of really bad analogies.

        Some points to make:

        1. You never see yourself as being wrong, ever (Michael Houston is right when he tells Tait what Tait wants to hear, but wrong every other time).

        2. You have decided what is just or unjust. Who left you in charge of determining what is justice or injustice?

        3. Junior and I disagree on most things political; yet, we treat each other with mutual respect and courtesy. There’s no belittlement there.

        It’s fair for you to wish to take me to task on the finer points of law. But I reserve the same right when its the subject of public relations and media relations. Additionally, I think you have a very poor grasp of what the concept of “pro-business” means.

  7. Dan Chmielewski
    April 21, 2014 at 11:54 am

    Speakers are not immune from slander (libel is written; slander spoken). So suggesting that the women on the council have no children from multiple abortions is slanderous. Now if someone where to start suggesting that of Mrs. Tait during their public comments, do you think Mayor Tom would let that fly? Because I wouldn’t.

    No Anaheim citizens speak for themselves in a series of F-bombs that Tait practically encourages. Let me know if you see that happening anywhere else.

    • Ryan Cantor
      April 21, 2014 at 10:56 pm

      Dan,

      As you know very well, the PROPER recourse for a defamed individual is through a civil action.

      They’re welcome to sue. Maybe they’re considering it, but perhaps (unlike you), they realize this is a giant waste of time that deserves far less attention than generously heap upon it.

      There’s a substantial difference between those seated on the dias and Mrs. Tait. Mrs. Tait is not subject to the council’s authority, and according to well established state law, the presiding officer could (and should) demand a speaker return to business subject to the jurisdiction of the convened body. Those who were elected by the people, well, I’m sure you’re going to tell me I’m wrong– their moral character is subject for public comment. Look it up yourself.

      That last bit certainly doesn’t excuse what was said. Its repugnance speaks for itself.

      While many Anaheim speakers aren’t gifted with your eloquence, they shouldn’t be silenced because of it. I’ll have to give you the benefit of the doubt that what you wrote is a typo, as clearly there are residents of Anaheim who chose to express themselves with a four letter word that you find objectionable, but which (much to your tender ears) is legal to use . . . because we didn’t lose the war.

      If you don’t like the ways laws are written, call your buddies in Sacramento and get it changed. That’s just how it is, Dan. Demanding that the Mayor of Anaheim break the law to satisfy your sensibility is simply reckless. Even more so since you won’t even be paying the bill.

  8. April 22, 2014 at 10:15 am

    It isn’t eloquence to communicate a concern to a city council and expect them to really hear what you have to say when you suggest the women on the Council are whores, sluts and bitches who have had multiple abortions or that another council member is a sick faggot.

    Now in some city councils, like Costa Mesa, the Mayor interrupts speakers he disagrees with all the time. He has to give them their time. In Santa Ana, council members don’t pay attention to speakers, with the exception of David Benevides. The Mayor conducts side meetings with others while Council members Martinez and Sarmiento frequently get up and walk around and even pay visits to members of the audience. In Santa Ana, Pulido has even restricted to comments to items on the agenda from time to time (see it happen to Claudio Gallegos). In Irvine, we had a pretty contentious council meeting last week but that was like a ride a Disneyland compared to how out of control Tait has allowed things to become in Anaheim.

    I’m not asking Tait to break the law. I’d like to see him show some spine and leadership.

    • Ryan Cantor
      April 22, 2014 at 11:52 am

      No, Dan– you’re asking him to break the law. You’ve done it multiple times.

      You’ve asked him, repeatedly, to permanently deny a public speaker use of a microphone.

      You’ve asked him, repeatedly, to interrupt speakers by using a mute button based solely on the words being used to express a thought.

      That’s breaking the law, Dan. That’s reckless. You’ve had a much lower threshold for the two illegal actions listed above in the past than what you’ve demonstrated here. You’ve demanded retribution for speakers simply using a four letter word.

      Worse than that– here you are again, repeating that idiot’s name calling– which is exactly what he wants you to do. You giving his speech more air time helps no one . . . other than yourself.

  9. junior
    April 22, 2014 at 12:35 pm

    One time I was going over my 3 minutes to the SA Council – Pulido started to interrupt me – I gave him a “are you REALLY going to do that to me??” look …. he said – “go on.”

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