The Volokh Conspiracy
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Shouting "Chick with a Dick" "Multiple Times" at City Council Meeting Was Disruptive, Could Justify Ejection
So holds a federal court, also concluding that earlier sexual discussions could likewise justify restriction in the open public comment period (treated by the law as a “limited public forum,” in which reasonable and viewpoint-neutral restrictions are constitutional).
From Stein v. City of Las Vegas, decided Monday by Judge James Mahan (D. Nev.):
This case arises from a disruption at a Las Vegas City Council meeting. Stein, a Texas resident, traveled to Las Vegas and attended a City Council meeting on August 17, 2022. The complaint provides that Stein frequently speaks at municipal meetings and is known for using "humor to bring attention to serious social and political issues."
Stein alleges that he planned to bring attention to the exploitative practices of Las Vegas casinos and that he incorporated a humorous anecdote while speaking to City Council members. Before Stein's allotted time had expired, Mayor Goodman interrupted Stein, whose microphone was subsequently cut off. Fiore then ordered the marshals to remove Stein from chambers….
Nevada law allows for the ejection of a speaker from a public meeting if he "willfully disrupts a meeting to the extent that its orderly conduct is made impractical." …
Although the question of whether a person's actions are disruptive appears inherently subjective on the surface, Stein's conduct, combined with the totality of the circumstances, was in violation of both Nevada law and the City Council Code of Conduct.
Defendants points to Stein's language as disruptive. Stein stated the following before his microphone was muted: "I end up meeting a nice Filipino girl. I take her back to my hotel room … I ended up having a good time. We started kissing. We take off our clothes. She has male genitalia. She's a transgender." Subsequently, Mayor Goodman interrupted Stein and reminded him "[w]e're in a public venue" and asked if he could remain calm.
Stein continued speaking despite Mayor Goodman asking him to be "calm" on multiple occasions. Stein's speech then edged on ludicrousness, as he suggested the installation of a tracking device on transgender individuals "so if you sleep with a prostitute [,] you know if it's a male, or a boy, or a girl."
A speaker's actions are deemed disruptive during a city council meeting if he speaks too long, is unduly repetitious, or extends discussions of irrelevancies. "Impertinent" or "profane" language is disruptive of a city council meeting's agenda. The Ninth Circuit has held that "foul language can be disruptive."
Stein's conduct, taken as a whole, was disruptive and warranted removal. Mayor Goodman repeatedly issued warnings to Stein and even asked him to calm down. The video depicts Stein's aggressive and loud tone, who instead of adhering to Mayor Goodman's reasonable instructions chose to yell at members of the City Council. Stein himself alleges that he planned to bring attention to the exploitative practices of Las Vegas casinos. However, his detailed and graphic explanation of a sexual encounter bore no correlation to his stated objective.
The court also rejects Stein's argument that he was not raising his voice any more than necessary. After Stein's microphone was muted, he shouted the explicit phrase "chick with a dick" multiple times in the direction of the City Council. Stein thus willfully disrupted a meeting to the extent that its orderly conduct was made impractical….
Stein alleges that viewpoint discrimination occurred because Fiore found his speech offensive and was familiar with his conduct at meetings in other localities.
A city council can regulate not only the time, place, and manner of speech in a limited public forum, but also the content of speech—as long as content-based regulations are viewpoint neutral and enforced as such. Viewpoint discrimination, which is prohibited in limited public forums, exists "when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." When analyzing viewpoint discrimination, a court must decide whether the government is regulating speech because it disapproves of the ideas expressed.
Defendants aptly posit that although there is no dispute that the speech occurred in a limited public forum, their refusal to indulge Stein's comments was permissible content discrimination, as stopping him from describing a graphic sexual encounter preserved the purpose of that forum. The Supreme Court has supported this form of content discrimination.
Contrary to Stein's assertions, there is no evidence that Fiore asked for Stein to leave the meeting because of his views on transgender individuals. Although Fiore stated in her deposition that she takes offense to "transgender issues," this does not mean that the genesis of her decision to remove Stein was because of any political sensitivities or motives. Nowhere in Fiore's deposition does she state she based her decision to remove Stein because she was offended by his viewpoint.
Accordingly, the court finds the City Council's ejection of Stein did not constitute a violation of his First Amendment freedom of speech ….
The court likewise rejected Stein's Equal Protection Clause claim:
An equal protection claim [in this context] requires a plaintiff to allege that he has "been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."
The court summarily rejects Stein argument regarding the merits of this claim. Stein avers that "it is undisputed that [he] was singled out for special treatment when compared to the other two speakers who were similarly situated" and "there [was] no discernable difference between Stein and the other two speakers."
The exhibits directly contradict Stein's position. No other speaker at the meeting used a confrontational tone and, more importantly, spoke about a sexually explicit topic. Daniel Braisted, the first speaker, recounted a personal experience that occurred two weeks prior to the meeting when he was shot with a water pistol. Susan Wade, the second speaker, spoke about her financial hardships and how she had been living in her car for the past eight months.
Simply put, there is no way to equate the first two speakers to Stein, as they did not create a disturbance and thus were not similarly situated to him….
