To my surprise, but something I have been concerned about, at the beginning of the city council meeting tonight, Brekke put on the record her objection to a section of how public input is conducted.

Remember when the city council moved public input to the back of the meeting recently (a 4-5 vote with tie-breaker from person of the year Mayor TenHaken) they specifically said that members of the public could not talk about decisions that were made final by the council during the meeting.

This is a clear violation of citizens 1st Amendment rights, as Brekke pointed out in her objection it concerns prior restraint;


In First Amendment law, prior restraint is government action that prohibits speech or other expression before the speech happens.


Prior restraint typically happens in a few ways. It may be a statute or regulation that requires a speaker to acquire a permit or license before speaking. Prior restraint can also be a judicial injunction that prohibits certain speech. There is a third way–discussed below–in which the government outright prohibits a certain type of speech. Courts typically disfavor prior restraint and often find it to be unconstitutional.

Basically Brekke points out that since decisions were already made during the meeting, voted on and final, the public has a right to address them and the government (city council or mayor) cannot limit them.

Even though Brekke’s opinion is NOT alone (there are many Supreme Court rulings about this) City Attorney Kooistra vehemently opposed her and basically told her she was wrong. It surprised me, actually astonished me how little the city attorney knows about 1st Amendment rights. From the mayor’s performance during the objection, it is clear he has no clue what 1st Amendment rights are, that has been blatantly obvious for a long time, but for an attorney with a law degree that has practiced in the military and in the private sector I would think he would be aware where the Supreme Court stands on this issue.

If Mr. Kooistra really wants to try out his Constitutional chops on this one, I would love to watch him get pummeled by a free speech attorney when someone from the public challenges this when the chair tries to shut them down for this ludicrous and unconstitutional rule violation. He may just get his day in the spotlight. Well, Mr. Kooistra, you know what Andy Warhol once said, “In the future, everyone will be world-famous for 15 minutes.” Good luck.

7 Thoughts on “Sioux Falls City Councilor Brekke calls out public input 1st Amendment concerns

  1. Fear & Loathing in Sioux Falls on January 5, 2021 at 11:50 pm said:

    She’s Theresa with a law degree. Rove was Bush’s brain. Trump just needs 11,780 votes. Jensen got his 97. Freedom of the speech is an after thought as long as it is not a thought of what just happened. It takes a degree to understand. I need someone’s cerebrum. Or, I just need 98 votes, then freedom wins with or without any brains.

  2. D@ily Spin on January 6, 2021 at 9:55 am said:

    The reason Public Comment was at the front of Council meetings is so that there could not be comment on what is yet to be decided that evening. Brekke’s right. Comment at the end of the meeting cannot be restricted. There’s a serious freedom of speech argument worthy of federal action.

  3. Mike Lee Zitterich on January 6, 2021 at 2:52 pm said:

    I have mixed thoughts on this issue; where our city ordinances bar public comments whether before or after the agenda from discussing any related agenda item; she makes a good point in the fact that maybe we should allow citizens to make public comments related to agenda items if ‘public comment’ is at end of meeting.

    I also thought Stacy Koostra made a valiant argument as well …

    The CITIZENS are allowed to speak on “agenda items” at first and second readings, no one is stopping us from doing so;

    City Attorney Stacy Koostra was also right, that “public comment” was established for citizens to speak on any issues of their choice, any topic they feel is important to them;

    But lets be clear – the State Statutes allow for the the PEOPLE of the City to codify in their ordinances that we can restrict ourselves during public comments to not speak on ‘agenda items’.

    I do not believe neither the Mayor nor the City Attorney are against allowing citizens to speak on agenda items during public comment, but until ‘we’ change our ordinance, we shall be restricted in doing so.

    It cannot be a First Amendment Violation if the “very people” themselves have established their own policy, rule, or ordinance, etc.

    Bring forth an Ordinance to change a prior rule, and you may be able to change that.

    Respectively – the FIRST AMENDMENT does NOT give you the right to say anything you wish, it simply bars the Federal Govt from restricting that right, allowing the State’s and Local Govt’s to self govern as they so choose.

    Just My Thoughts,
    Mike Zitterich

  4. Stacy can make all the points he wants, the Constitution is the highest law of the land, he is wrong about limiting prior restraint.

  5. even dummys need a job on January 6, 2021 at 4:03 pm said:

    after watching that goober try to justify his comments/legal analysis, i’m reminded of the line from “a few good men” when cruise says something to the effect of missing the class in law school where law was actually being taught.
    the guy looks and sounds like he’s just making it up as he goes…fits right in with mayor feckless.

  6. Mike Lee Zitterich on January 7, 2021 at 12:42 pm said:

    The U.S Constitution was established by the STATES in order to create a Central Government, it establishes the Congress, the Executive, the Supreme Court. It then restricts that government to specific responsibilities, while the “STATES” acting as sovereign entities, have the right to self govern as they so choose. “WE” as States then agreed to adopt the Constitution only where we agreed to the First Bill of Rights or “Limitations” on the Federal Government.

    Therefore, the States acting as the People protected themselves, reserving of certain rights as they so choose to self govern via the ‘consent’ of the people.

    Meaning, we have the right to make our own rules. As long as the people ‘consent’ to give up that right, what can you do?

    I told Janet very great public comments, and she did the right thing, putting on public record, that keeps the issue in the forefront – now ‘we’ need to lobby that council create a “New Concept” for Public Input.

    – Mike Zitterich

  7. The Guy From Guernsey on January 8, 2021 at 11:18 am said:

    Specifically, the quote: “Oh, I forgot. You were sick the day they taught law at law school.”
    Fortunately as a product of the USD Law School, Mr Kooistra would never have faced that dilemma … ‘cuz there isn’t any such day at the USD Law School.
    To return to your paraphrased version – Hell, he missed the law school where law is actually being taught.

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