Prior Restraint at the Sioux Falls City Council meeting

The city council meetings are ran by the chair. Normally that is the mayor who only passes the gavel if he has a conflict, wants to speak on an item or has to cast a tie-breaker vote.

The chair has the ability to stop a speaker or interrupt a speaker. In normal circumstances that would be if someone goes over time limit, is cussing or makes physical threats towards the chair, council, city staff or anybody really.

What the chair SHOULD NOT be doing is stopping or interrupting speakers because of the content of their input, this is prior restraint;

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

When a speaker is making a point during public input, they have a certain amount of time to do so. (3-5 minutes) during that time it may be the case that a speaker builds a narrative that may have nothing to do with the item they are addressing but telling a story to make the case about the item on the agenda. But that doesn’t even matter. As long as public input is addressing the body about government it doesn’t matter if that narrative is about sewer pipes, teddy bears or hurdy gurdies.

In other words it is extremely inappropriate (and unconstitutional) for the chair to cut off or redirect speakers unless they are in violation of decorum that I wrote about earlier.

Lately the Chair (Mayor) of the meeting has been in that habit of trying to redirect speakers if he doesn’t understand or doesn’t like the narrative they are using to build their case. He did it a couple of times Tuesday night and has done it in the past, this is prior restraint and he has been made aware of it.

When former councilor Brekke was on the council she had a long conversation with the city attorney about it, and he seemed to conclude it was just a difference of legal opinion. It is NOT a difference of opinion, it is a violation of Free Speech and the 1st Amendment.

A couple of years ago when I was scolded by the mayor while giving public input (I think it was when I called him a hypocrite . . . several times) a former security officer told me later about the incident that he had NO intention of arresting me or making me leave because I was well within my constitutional rights. I think he said, laughingly, “Calling someone a hypocrite is NOT a physical threat, It’s not even a curse word.”

The scary part about this is that if someone wanted to file a legal complaint against the city because of the chair’s action, they could, and it could be a very easy prosecutable offense. I would never do that, because I am very capable of sticking up for myself and swatting the chair’s interruptions away like flies but it can be very intimidating to someone who has never addressed the council or understands what prior restraint is. In simple terms, it’s bullying.

Somebody asked me after the meeting why does he do that? I guess I could give a hundred answers, but I think this will suffice;

Authoritarian; favoring or enforcing strict obedience to authority, especially that of the government, at the expense of personal freedom.

Some citizens have expressed to me they are disappointed in how supposed non-partisan city government has become so partisan. I don’t see partisanship at all, all I see is Authoritarianism, and it is like a rabid dog.



19 comments ↓

#1 Very Stable Genius on 06.17.22 at 8:00 pm

They’re not called the “Dutch Mafia” for nothing.

#2 D@ily Spin on 06.17.22 at 8:05 pm

It should be evident that Strong Mayor Charter is (in fact) authoritarian control. It would seem citizens have a voice provided it’s what the mayor wants to hear. Truth would be in a court of law. Yet, the charter doesn’t allow appeals.

#3 "Woodstock" on 06.18.22 at 12:11 pm

“I used to use prior restraint all the time before social media came along”….. “But now I tell everyone what I think”…. #AllTheTime 🙁

#4 Fear & Loathing in Sioux Falls on 06.18.22 at 12:22 pm

Has the City Council become ‘The Gong Show’? But then again, that would be appropriate since they are known for quite a few bad acts:

https://www.youtube.com/watch?v=p3z__zRFwu4

#5 Further Fear & Loathing on 06.18.22 at 12:36 pm

“Just Say No”, “prior restraint”: There’re just so many buzz words and phrases out there now days…. Now, which one is for drugs again, and which one for promiscuity? I forget.

#6 anonymous on 06.18.22 at 1:16 pm

Thank you for explaining ‘prior restraint’.

As I watched this meeting, I wondered why the Mayor kept interjecting himself into PUBLIC INPUT.

My perception was that it was intimidation. It most likely won’t work with those who regularly give input, but for anyone who was new to the Council chambers and public input it could certainly be intimidating.

What surprised me was…..no Councilor called him out on this!!

#7 Mike Lee Zitterich on 06.18.22 at 8:06 pm

The Mayor or “chair” has a public meeting to run, YOU know the rules, and if the “chair” believes you are off topic at any moment, he has the authority given to him by the people to re-establish order, let alone point of privilege. IT is a privilege to speak before the council on “Agenda Items” to discuss the topic at hand. Prior Restraint would NOT roll over into a Public Meeting cause “WE THE PEOPLE have adopted ordinances of how to regulate and manage public meetings, let alone, you gain the privilege under those rules to speak before the governing body to make your case for or against a topic. No City Councilor spoke up against the Mayor, cause they know the rules.

Prior Restraint only refers to American’s right to Publish freely any expression, right of passage, to report on any such topic by creating news stories. The Government cannot stop or limit that activity outside of a “public meeting”. .

https://www.mtsu.edu/first-amendment/article/1009/prior-restraint

#8 VSG on 06.18.22 at 10:26 pm

A doxing prior restrainer: This is not going to end well. But who’s Donald Segretti this time? #Watergates50thAnniversary #WhoNeedsAPlumber?

#9 l3wis on 06.19.22 at 10:58 am

Mike, while you are right, it does apply to the press, it also applies to speech, their is well established cases on public input, the 1st amendment and prior restraint;

https://www.supremecourt.gov/opinions/17pdf/17-21_p8k0.pdf

As for the mayor interrupting people, how does he know what story I am going to tell to make a point about the agenda item? He does NOT. That is why it is considered prior restraint when he interrupts people.

#10 l3wis on 06.19.22 at 10:59 am

And even if it wasn’t unconstitutional, which it is, it is blatant bullying and intimidation.

#11 D@ily Spin on 06.19.22 at 12:02 pm

The king enjoys thumbs down. With some respect he’ll get some and continue his reign undisposed despite unconstitutional city government.

#12 D@ily Spin on 06.19.22 at 12:09 pm

Undeposed

#13 Mikey's Wrong Again on 06.19.22 at 1:10 pm

MZ seems to misunderstand again when he states:

“IT is a privilege to speak before the council on “Agenda Items” to discuss the topic at hand.”

No Mikey, its the law whether state law, city ordinance or cherished right from the US Constitution. There is no law or rule saying how a point of view can be given by the speaker. If during the three or five minutes the speaker swings right then left to illustrate the point she or he has, the chair cannot shut down the discussion.

“Prior restraint is a type of censorship in which speech or expression is reviewed and restricted before it occurs. Under prior restraint, a government or authority controls what speech or expression can be publicly released.

“Prior restraint has a history of being viewed as a form of oppression in the United States.” https://www.thoughtco.com/prior-restraint-definition-4688890

Our Council has periods during meetings called Public Input with limited restraints, it is not a privilege to partake in these periods, it is a cherished right to speak our views according to the accepted minimum rules.

#14 Warren Phear on 06.20.22 at 8:25 am

Authoritarianism with more than just a smidgen of theocracy.

#15 Mike Lee Zitterich on 06.20.22 at 5:30 pm

It is quite funny that someone has to create screen name to tell me that “I” am incorrect. I take that as a sign that my point is being loudly heard and respected.

Yes, the commentator is correct, it is an ORDINANCE that sets the rule allowing “residents” to speak on Agenda Items, and yes, it is a State Law that allows for “residents” to speak up during public comment periods.

The only “protected right” to speak before governing bodies is “open comment periods”. There is NO State law that states that ‘we’ must allow people to speak on agenda items beyond being asked or invited.

As a CITY, we could amend city ordinance to completely remove Public Comment on Agenda Items, then making it a “personal point of invitation” to request to comment on such items.

Anyone who chooses to speak on “Agenda Items” has the privilege of doing so, so long as you stay within the ‘rules’ of doing so as adopted by ordinance.

#16 l3wis on 06.20.22 at 6:03 pm

Freedom of speech is a constitutional right, not a privilege;

‘In modern democratic states, a privilege is conditional and granted only after birth. By contrast, a right is an inherent, irrevocable entitlement held by all citizens or all human beings from the moment of birth.’

You are correct that the council makes the rules when it comes to WHEN citizens can speak on certain agenda items, they also make the rules on time limits, decorum and the placement of that input during the meeting. But once those rules are framed and granted they cannot tell a citizen what to say during the time set aside for them.

#17 Mike Lee Zitterich on 06.21.22 at 1:17 pm

Scott,
We are a “Representative Democracy” meaning the RULES are put in place by both the PEOPLE and their Representatives. “WE” vote to adopt public policy on how to govern our public buildings, places, properties, services provided by government. In a Republic – form of government in which a state is ruled by representatives of the citizen body. Modern republics are founded on the idea that sovereignty rests with the people, though who is included and excluded from the category of the people has varied across history. Because citizens do not govern the state themselves but through representatives, republics may be distinguished from direct democracy, though modern representative democracies are by and large republics. The term republic may also be applied to any form of government in which the head of state is not a hereditary monarch.

While the “Council” voted last to amend the rules concerning public input during “public meetings” – the people passively accepted those rules with no attempt to refer the rules back for public vote. You hereby agreed that:

1) You may have the privilege to speak on Agenda Items, so long as you honor the rules put in place;

2) You agreed to 3 minutes on First Readings, 5 Minutes on Second Readings, 3 Minutes during Open Commentary;

3) You Agreed NOT to speak on Agenda Items during Public Comment Periods, while sticking to the topic on Agenda Items.

4) You also agreed that the Mayor or Chairman has the authority to manage the comments in a productive, timely, fashion as to keep the Public Meeting on Point.

#18 l3wis on 06.21.22 at 2:50 pm

First off, the rules were made by the council, and the public did protest several of the changes, and our representatives ignored the protest and did what they wanted to. 1-4 are correct, but the mayor has NO right to ‘manage’ what someone is going to say. It is not a debate in HS speech class, it is a public government meeting, rules apply to both sides. Citizens have to follow those rules and so do the elected officials, this means when we keep up our end of the deal, they must also. If the chair is permitting us to speak within that framework of rules, the chair can’t make up extra rules in midstream. Controlling the narrative appears NO where in the rules that apply to public comment. NO WHERE. I have to admit, when you speak, I don’t know where you are going with your narrative all the time, but I figure you have a point to make. Why doesn’t the mayor cut you off?

#19 Mike Lee Zitterich on 06.21.22 at 9:22 pm

I been cut off on ‘time’ – but I do not believe I ever got cut off for being out of order. I guess I have a different style of talking, than some do. I try to go up with a purpose to be informational, more than decisive. I go up thinking I could be cut off IF and where I speak off topic.