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The First Amendment

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By Optic Editorial Board

It’s not unusual for critics of City Hall to show up at Council meetings to vent their frustrations.

The times that those critics have begun to talk about a specific governing board member or city employee, they have been interrupted by the city attorney and told that they are out of order.

By contrast, those who show up at Council meetings to praise specific governing body members or city employees are allowed to speak uninterrupted.

Earlier this month, the New Mexico Foundation for Open Government, of which the Optic is a member, sent a letter to Mayor Alfonso Ortiz and City Attorney Dave Romero warning that the city’s practice of not allowing criticism of governing body members or city employees appears to be a violation of the First Amendment.

And the watchdog group’s stance appears to be backed up by a federal court ruling issued last week that struck down a similar village of Ruidoso policy barring speakers from being critical. The federal judge determined that the Ruidoso policy is “an unconstitutional burden on free speech.”

The city would do well to heed the warning issued by FOG and change its practices. If it doesn’t, we fear that it will only be a matter of time before the city is facing its own lawsuit for violating someone’s First Amendment rights.

Unfortunately, the city doesn’t appear to be taking FOG’s warning seriously if the response letter sent by City Attorney Dave Romero is any indication.

In his letter, Romero writes, “The Mayor, City Attorney and Governing Body have evenhandedly enforced restrictions on speech that are viewpoint neutral and that are reasonably necessary for the orderly conduct of our meetings.”

He also asserts that the city limits public comment to topics on the agenda and that the city’s rules don’t allow obscenity, “fighting words,” libel or slander.

We feel that Romero’s letter to FOG is disingenuous.

Restrictions on public comments have not been viewpoint neutral. The fact is that if a member of the public wants to praise a governing body member or a specific city employee or prospective employee during the public comment portion of the meeting, that individual has been allowed to speak. If someone begins to criticize a governing body member or a specific city employee or prospective employee, more often than not, that individual is interrupted by Romero and told he is out of order.

Just ask activist Lee Einer who was told he was out of order when he attempted to speak out against the hiring of City Finance Director Ann Marie Gallegos.

And the fact is that the city has no rule that public input speakers can only speak about items on the agenda.

In fact, the only written rules on the public input portion of Council meetings is that speakers keep their comments to three minutes and that they sign up to speak prior to the Council meeting beginning.

Those are perfectly reasonable restrictions, and if a speaker refuses to relinquish the microphone after his time has expired, the governing body is within its rights to have that person escorted away from the microphone. The city would also be justified in adopting a rule that prohibits profanity and interrupting the Council. But Romero has gone beyond that.

Here’s the bottom line. FOG’s legal panel is made up of the top First Amendment lawyers in the state, and they feel that the city is violating people’s First Amendment rights.

It’s time for the mayor and city councilors to step up and put an end to the First Amendment violations that have been occurring on their watch.