By Dan Williams and Liz Marasco
One underappreciated lesson from last week’s election is the power that fierce and unfettered debate has had in transforming a decades-long political status quo in Boulder. The results of last week’s election, along with last year’s, are part of a once-in-a-generation political realignment in favor of fresh, progressive ideas. This realignment would not have been possible without the spirited debate we’ve been having on previously-unquestioned principles and ways of doing things in Boulder. Free speech has allowed a new consensus to emerge.
Yet, some of our city counselors are now advocating for a change to the council’s operating rules that would regulate and suppress robust debate. The proposed changes to the City Council’s “rules of decorum” would further limit what city counselors are allowed to say, and the proposed changes would expand the speech restrictions beyond the proverbial four walls of the meetings and into private settings, such as a self-published newsletter or community forums.
By their terms, these proposed regulations are drafted to appear innocuous — they would require “accuracy and truthfulness” in all forums, and would also force councilors to not “assume motives” of dissenters or make “personal attacks” in public statements anywhere. But the devil is in the details here. This proposal would put the government in the role of determining what is accurate or truthful, and what is fair commentary about another. Because of that, it is a dramatic and shocking attack on basic free speech principles that should be rejected.
To understand the problem with putting a government body in charge of truth-policing speech on public issues, consider the following four statements that arose during the just-completed election season:
1) Police violence is a threat to public safety.
2) Boulder’s youth will have easy access to drugs whether or not homeless people are near Boulder Creek.
3) The move to even-year elections was designed as a power grab to extend current councilors’ terms.
4) The proposed library district will lead to libraries being closed.
We strongly believe the first two of these statements are true, and the latter two are false. Others believe the opposite. As a community, we should all agree we are well served when all members of the City Council, in their thought-leader functions, are able to express their own views as to which of these statements are true, which are false, and why. No present or future City Council majority or other government official should be permitted to be the final arbiter of the truth of any of these statements.
Equally troubling is the expansion of these so-called rules of decorum to statements outside of council meetings. First Amendment law has long allowed for reasonable “time, place, and manner” restrictions on speech. But these proposed changes are more analogous to a total ban on speech, because they apply to statements in any forum, anywhere, anytime, not just at City Council meetings. That’s not okay.
At their core, these proposed speech restrictions are un-American. Societies that regulate speech based on the whims of government officials are societies that suppress democracy and that appeal to the worst passions and instincts of the majority. At a time when our own democracy is under a historic threat, responsible government officials have a special duty to reject these types of feel-good speech restrictions. We urge the council to reject any rule change allowing a council majority today or in the future to deem some speech true and other speech false, some speech a personal attack and other speech polite.
Expanding rules of decorum to apply to speech outside of City Council meetings is the wrong solution for the problem of speech we think is unfair, hurtful or incorrect. Government should not be the arbiter of permissible speech on matters of public concern. It is too rife for abuse. Judging the quality and accuracy of speech made in public forums is a sacred right reserved for the people. Please urge the City Council to vote down the pending proposal to expand the reach of its rules of decorum.
Dan Williams is an attorney in Boulder focusing on civil rights and commercial litigation. In 2021, he was a candidate for Boulder City Council.
Liz Marasco is a law student. She works as a law clerk in labor and employment law.
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