New Ann Arbor City Council Rules - approved by a majority of Council on February 1 and again, on reconsideration, February 16 - are the subject of criticism and analysis by the local American Civil Liberties Union (ACLU). This week, Council received a letter from the Washtenaw County ACLU Lawyers Committee, which is comprised of fifteen attorneys as well as the state legal director of the ACLU. The vice-chair of this committee is local attorney, Nick Roumel, who signed the letter. Mr. Roumel has shared publicly that the contents of this letter are the product of two formal meetings and significant communication among the committee between meetings. The ACLU Lawyers Committee unanimously supported release of this letter which outlines how newly adopted Council Rules potentially violate the First Amendment rights of Council Members.
A timeline of events:
January 19, 2021 (Council meeting)
Proposed new Council Rules were added as an attachment to the agenda, included in meeting minutes for the Administrative Committee.
I presented a resolution asking City attorneys to prepare a legal memo (for release to the public) that would explain the intersection of Constitutional First Amendment rights and Council Rules governing our public meetings. This resolution was rejected by a majority of Council.
January 30, 2021
Council received (via email) a legal memo from City attorneys on the topic of the First Amendment and proposed changes to Council Rules.
February 1, 2021 (Council Meeting)
A majority of Council approved new Council Rules as proposed by the Administrative Committee. During the meeting, amendments to the new Council Rules (specifically removing the “Redress of Grievances” section) were defeated by a majority of Council.
After this meeting, an attorney on the local ACLU Lawyers Committee reached out to me and asked for information about the new Council Rules - he had read an MLive article about them and wondered about a potential “chilling effect” on speech.
February 8. 2021
Council received a second legal memo (via email) from City attorneys with advice regarding new Council Rules.
February 16, 2021 (Council Meeting)
The Council Rules were brought back for “reconsideration,” in light of news that the local ACLU was formally discussing them. A motion to postpone adoption of these Rules was defeated by a majority of Council. A majority of Council approved the new Rules for a second time.
March 1, 2021 (Council Meeting)
I sponsored a resolution to waive privilege on the legal memos we received via email on January 30 and February 8 regarding the new Council Rules so that those memos could be shared with the local ACLU. Waiving privilege on these memos would also effectively release this information to the public; I believe that the public should see the legal advice offered to Council on this particular topic. At the table, my resolution was substituted with another and approved: our City attorney was directed to prepare legal memos on the topic of First Amendment rights and our new Council Rules. (Council essentially approved the same resolution that was previously considered and rejected on January 19.)
In their letter to Council this week, the ACLU identified problems in the section of the new Rules called “Redress of Grievances.” The issues they outline are consistent with the reservations expressed by several Council members (including me) before and after the adoption of these new Rules. E.g. Amendments to remove the “Redress of Grievances” section were proposed on February 1 and again on February 16, but rejected by a majority of Council.
I previously served on the Council Rules committee. This year, the Mayor dissolved that committee and combined it with the Administrative Committee. These new Council Rules originated with the Administrative Committee and I expect any changes to also originate with that committee. I sincerely hope that they take responsibility for fixing the problems identified by the ACLU. I look forward to seeing this issue resolved at a future meeting.
The text of the letter sent by the ACLU is below, along with the original PDF.
March 3, 2021 To the Ann Arbor City Council:
We have reviewed the City of Ann Arbor’s “Rules of the Council” as approved February 1, 2021. In particular, we focused on Council’s new “Redress of Grievances” rule for First Amendment compliance and are writing to express our concerns.
The rule provides that a member may be sanctioned or censured for an entire range of protected speech, including statements made outside of council meetings. The rules state:
“Redress of Grievances”
If a Member's integrity, character, or motives are assailed, questioned, or impugned by another Member, either during a Council meeting or in another public venue, the Member can seek redress through the Administration committee using the process outlined [below]. [Emphasis added]
COUNCIL ETHICS RULE 12 – COUNCIL SELF-GOVERNANCE
City Council has determined that the internal regulation of the behavior of City Councilmembers through counseling or reprimand should be done according to the following procedure.
1. Counseling refers to the meeting by the Council Administration Committee with a Councilmember for the purpose of discussing a Councilmember’s action or actions that are considered a violation of a law, Council Ethics Rules, or Council Administrative Rules, but considered by the Council to be not sufficiently serious to require reprimand. Matters eligible for Counseling include: A first violation of the Council ethics or administrative rules.
2. Reprimand. A reprimand is a formal public statement by the Council that a Councilmember’s actions are in violation of law or Council Ethics Rules or Council Administrative Rules, but considered by the Council not sufficiently serious to require removal. It is not necessary that counseling precede a reprimand depending on the nature of the violation. A reprimand may be issued based upon the Council's review and consideration of a written allegation of one or more violations. Matters eligible for reprimand include the following: Repeated violations of the Council Ethics or Administrative rules within a term of office. Failure to attend counseling when determined by the Council that counseling was warranted. [Emphasis added]
It is unclear whether a council member may ultimately face removal for serious or repeated violations. Although the “Reprimand” section refers to actions “not sufficiently serious to require removal,” Council’s rules do not otherwise address removal of a member. Regardless, we are concerned that, insofar as council members may be sanctioned based on their speech, there is a potential First Amendment violation.
The U.S. Supreme Court dealt with this issue when civil rights icon Julian Bond was prohibited from taking a seat in the Georgia State House because of his controversial political statements, especially opposing the Vietnam war. That, said the Supreme Court, violated the free speech provisions of the First Amendment. Bond v. Floyd, 385 U.S. 116 (1966).
Later, the Supreme Court again upheld the First Amendment right of a candidate, this time one running for judge in Minnesota. He had challenged the “announce clause” where judicial candidates were prohibited from stating their views on certain subjects while campaigning. In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the Court held that a content-based restriction of speech by candidates for public office must be narrowly tailored under the strict scrutiny test, and must demonstrate that the restriction does not unnecessarily circumscribe protected expression. The Court added, “the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is ‘at the core of our First Amendment freedoms’—speech about the qualifications of candidates for public office.” Id. at 774.
This principle was affirmed in the much more recent case of Wilson v. Houston Cmty. Coll. Sys., 955 F.3d 490 (5th Cir. 2020), involving a community college board of trustees. The court found that “a reprimand against an elected [trustee] for speech addressing a matter of public concern is an actionable First Amendment claim.” Id. at 498.
When bringing this type of First Amendment claim, a litigant must show: (1) engagement in constitutionally protected conduct; (2) an adverse action was taken that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) that the adverse action was motivated at least in part by the protected conduct. Courts then apply a strict scrutiny test, requiring the government to show that the law/rule at issue is necessary to achieve a compelling governmental interest, and that the law/rule is narrowly tailored to achieve that interest.
To threaten adverse action against a member for questioning the “integrity, character, or motives” of fellow members, especially outside of a Council meeting “in another public venue,” is troubling. This is especially true because speech that relates to policy disagreements, or is part of election campaign rhetoric, often questions (or can be perceived as questioning) a political adversary’s “integrity, character, or motives.” Not only does such speech have strong First Amendment protection, but the words proscribed have so many meanings and applications that the Rule may also be vulnerable to being void for vagueness (which is another type of First Amendment test).1
Under these rules, a member could face sanctions merely for questioning why another member voted the way they did on a certain issue. For example, the ongoing affordable housing debate has engendered a great deal of rhetoric. Some members may be criticized for not sufficiently caring about providing low income housing; others for being unduly pressured by certain interest groups. With either scenario, the speaker may be subject to sanctions.
Even without a formal complaint, the very threat of sanctions could deter council members from continuing to speak about issues of public concern, creating an unconstitutional chillingeffect on speech. Thus, the rule is also vulnerable under the First Amendment’s “overbreadth doctrine,” which provides that a regulation of speech can sweep too broadly and prohibit protected as well as non-protected speech. All of these judicial tests reflect the principle that free expression needs “breathing space” to survive. City of Houston v. Hill,482 U.S. 451, 467(1987).
We are mindful that the intent of the rule is to promote civility, at a time when our political landscape seems more divided than ever. We strongly condemn hate speech or targeting of historically oppressed people and groups, and agree that it is critical to build bridges. Nonetheless, we must conclude that enforcement of the new rule, and the rule itself, run afoul of the First Amendment. We urge you to reconsider this new restriction on protected speech, just as you did recently when council rebuffed an effort to limit the free speech rights of speakers who use strong language during public commentary. The new rule is similarly problematic, for the reasons we have outlined above.
Nicholas Roumel, Attorney and Co-Chair, Washtenaw County Lawyers Committee for the ACLU of Michigan
1“A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”Hill v. Colorado, 530 U.S. 703, 732 (2000). “[S]tandards of permissible statutory vagueness are strict in the area of free expression.”NAACP v. Button, 371 U.S. 415, 432 (1963).