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County stands firm on video policy in face of ACLU concerns
The ACLU of North Carolina served notice to the Guilford County Commission last week that a policy under development to limit video presentations by citizens appears to violate freespeech rights under the First Amendment.
The commission adopted a policy last year to ban video presentations during the speakers from the floor portion of its meeting and is considering an additional policy to created an agenda review committee headed by the board chair to preview and approve video presentations during agenda items. The policy changes came up after Chairman Skip Alston objected to a campaign video promoting conservative candidates for Greensboro City Council that was shown by Conservatives for Guilford County co-founder Jodi Riddleberger during speakers from the floor.
“It appears that the county’s actions with regard to Ms. Riddleberger, as well as the passage of the ban on multimedia presentations during public comment period constitute violations of the First Amendment,” ACLU of North Carolina Legal Director Katherine Lewis Parker wrote to the commission. “First, we believe that the general requirement that individuals can show videos only if approved and placed on the agenda is an unconstitutional prior restraint on speech. Furthermore, Chairman Alston’s specific comments and actions against Ms. Riddleberger suggest that these new rules, while they appear to be content neutral, are a thinly-veiled disguise for impermissible content discrimination, or even viewpoint discrimination.”
On one count, Alston agrees with the ACLU.
In an interview last week, he said the video ban amounts to a restriction on the content of speech, comparing Riddleberger’s video to yelling “fire” in a crowded theater or displaying pornography. Alston added that he believes some restrictions on the content of speech are appropriate.
“The situation was she showed a video that we didn’t know what was going to be on it,” Alston said. “If that was the case then anybody could come up and show a pornographic video. What she tried to do is endorse certain candidates.”
County Attorney Mark Payne floated a different analysis than Alston, positing that the video ban during speakers from the floor is a time, place and manner restriction on rather than one addressing content. The burden on government to justify content restrictions is higher than for time, place and manner restrictions. Viewpoint discrimination is impermissible under the Constitution, Parker said.
Payne said the commission need only establish a rational reason to clear the legal bar for time, place and manner restrictions on speech. He offered a number of reasons for the ban, including that the video presented by Riddleberger looked like an advertisement and could give viewers the incorrect perception that the message was endorsed by the county commission, and that allowing video gives an unfair advantage to speakers with access to advanced technology.
Payne said the commission’s critics are missing a critical distinction between the public comment period, which is for the purpose of providing a forum to discuss any topic the public chooses to address, and the business portion of the meeting, in which the guiding principle is whether an agenda item is necessary to the board in performing its duties or assists it in doing so. In the case of the former, Payne said the commission is making a content-neutral ban on video; in the case of the former, the commission has no obligation to place any item such as Riddleberger’s request for reconsideration of the video ban on the agenda based on a citizen request.
“I want to protect speech,” Alston said. “I’m a proponent for free speech. I fight every day for free speech. When somebody tries to make a mockery and overextend those parameters, it’s a different thing.
“If the courts say that we’ve violated someone’s free speech we’ll stand corrected,” he added. “At this point our lawyer says we’re in no way violating someone’s free speech by not allowing them to show a video.”
Payne said he was surprised to receive the letter. He considers Parker a friend and a good lawyer. “Having looked at this letter and looked at the policy the board adopted,” he said, “I think what we did is absolutely consistent with the law.”