A citizen attempting to speak at a Brown County Board of Health meeting in July was stopped after the board’s chairman raised concerns that a board member might be slandered. An open government specialist tells Media Trackers that such prior restraint of public speech at a governmental meeting is unconstitutional. William Acker was attempting to speak on a document he was about to submit to the board. Acker said the document detailed the unprofessional behavior of Board of Health member Jim Crawford.
Acker began describing the behavior when Crawford called Acker’s comments slanderous. Board Chairman Richard Schadewald then interrupted Acker:
“I would recommend Bill…I don’t know that you want to put on a county public record…anything…” Acker then interrupts Schadewald, saying “these are all supported by facts.” Schadewald then raised legal concerns about Acker continuing:
“As Chairman, if you want, I’m going to recommend that you don’t submit it (laughing), but you’re an adult and I’ll give you the right to. If you want to submit it, you can submit it. But I’m going to stop you at…we’ll read it. I don’t want you to say anymore because so then now that becomes an issue if there is litigation as to what was said and then audio recordings and all that. So my recommendation Bill is if you want to submit this submit this in a written form only and that is your best bet…”
Acker told Schadewald he wasn’t afraid of litigation. Schadewald responded:
As a board of Health Chairman though I’m going to rule that we will accept this under public comment as submitted, but I don’t want you to add any more…I totally respect you as an engineer and a person but I’m not going to get this board of health in the middle of he said she said litigation and newspaper reports…no. We’ll take the document and the document stands by itself. Do you get it?
Schadewald then told Acker he would run the submission by county corporation counsel and then Acker could speak at the next meeting. Acker agreed to those terms. That meeting planned September 11 was not held. Schadewald tried one more time to dissuade Acker from even submitting the printed document to the board, but Ackerman persisted.
Media Trackers sent the audio exchange between Schadewald and Acker to Tom Kamenick, open government specialist at the Wisconsin Institute for Law and Liberty, who provided us this comment:
During public comment periods, government officials can’t let some people speak and stop other people from speaking because they don’t think they’ll like what they hear. Discriminating on the content of a person’s speech violates their free speech rights. Even if an official thinks somebody might say something slanderous, they can’t stop the speaker; that kind of prior restraint on speech is unconstitutional.
Media Trackers then obtained an email where County Corporation Counsel David Hemery which directs Schadewald to adopt policies that would have the effect of limiting community input in the future:
My suggestion moving forward is to follow the general procedures of other committees, and the county board, by limiting public comment to 5 minutes per individual. I also suggest the committee not formally receive documents of a personal nature from members of the public, such as documents that have not been published in a widely circulated and recognized publication That would allow individuals to continue submitting published documents on the wind farm issue that provide the committee with valuable information to consider, but would prevent individuals from writing documents themselves critical (and potentially slanderous/libelous) of others and having them received/accepted by the committee, which some may argue gives them a sense of legitimacy. Those with a personal story or other information to share would have the chance to do that during the public comment period. Those who wish to submit published documents focusing on wind turbines would also have the chance to do so.
In summary, my recommendation here is threefold:
Limit public comment to 5 minutes per individual;
Limit the formal receipt of unsolicited documents from the public to the committee to documents published in widely circulated publications, or limit them to documents published in peer-reviewed journals; and
Not allow the ‘reading out loud’ of said documents on committee time (only allow reading documents during public comment – that way the committee is not attaching any legitimacy to the documents read aloud, the committee is just allowing a member of the public to speak during public comment, and if the member of the public says anything slanderous then it is at that member of the public’s own risk, and opposed to the committee’s).
Open government specialist Kamenick weighed in on Hemery’s recommendations:
I don’t see why the Board of Health would want to hear less information from people who affected by or care about this issue. Five minutes may not be enough time for a citizen to share their story, so the ability to submit written comments is crucial. The board should be willing to take public input in any form.
Residents near a Brown County wind turbine farm have complained of adverse health effects and Acker has been a consistent advocate for them at board of health meetings. He and others have dueled publicly with Crawford on the wind issue. As Media Trackers reported in March, Crawford attempted to have comments by Acker and Barbara Vanden Boogart removed from minutes that had been prepared from a previous meeting.
You can hear the exchange between Schadewald and Acker here: