Opinion: It’s time to bring back Zoom

By James Grossberg

In a Feb. 13 incident of what commonly is called “Zoom bombing,” an organized group used Zoom to disrupt a Laguna Beach City Council meeting with racist, antisemitic and homophobic slurs. None of the disrupters appeared to be Laguna locals. After that incident, the council abruptly halted all remote comments at its meetings and has not restored them.

Local governments in California began to allow such remote public comments during the COVID-19 pandemic. The pandemic waned, but many city councils, including Laguna’s, continued to welcome remote comments as a public service to individuals who have difficulty attending council meetings due to family or work obligations or disability.

Despite numerous Zoom bombings that California public bodies have experienced, a consensus has been reached in California that remote public comments have benefitted everyone. A recent survey of 100+ California cities found that most are successfully using remote comments and believe they “have been beneficial to city council meetings[,] . . . increased public participation and civic engagement” and “not caused significant negative impacts.” The City of San Diego, which has been subjected to numerous Zoom bombings, has continued to permit remote public comments.

Yet, in a June 12 public statement, City Manager Dave Kiff argued that Laguna should not rush to reinstate Zoom out of concern that hateful comments can traumatize meeting participants and City staff and disrupt “community decorum and city business.”

However, a fundamental tenet of a democratic society is that the occasional abuse of free speech by a few individuals should never serve as a reason to curb the free speech of everyone else. As the US Supreme Court has recognized, “speech that demeans on the basis of race, ethnicity, gender, religion . . . or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

As Justice Anthony Kennedy wrote, government prohibitions against “speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

Mr. Kiff also cited City Attorney Megan Garibaldi’s concern that council actions such as those celebrating LGBT+ Pride Month and Juneteenth could limit the city’s ability to control disruptive comments at council meetings because those comments might then arguably relate to “city business” “In that instance, we’d likely have to endure the hateful speech,” according to Ms. Garibaldi. However, that is not the law.

California’s major open meetings statute, the Brown Act requires council to permit members of the public to address the body “on any item of interest to the public . . . that is within the subject matter jurisdiction of the legislative body.” That jurisdiction is not defined by whatever “city business” council may choose to conduct but rather by state law.  So a decision by council to address minority rights or, for that matter, any other issue does not alter the City’s statutory jurisdiction or limit its ability to regulate public comments to council.

Courts have ruled that the First Amendment allows legislative bodies to impose “reasonable time, place & manner” restrictions on public comment periods. Under that rubric, council also has several options to minimize the risk of a reoccurrence of the Feb. 13 disturbance. They include:

—barring public comments that actually disrupt or impede a Council meeting, ejecting violators and pressing criminal charges;

—limiting the use of Zoom call-ins to Laguna locals so long as everyone else is free to comment in person at Council meetings or in writing, a measure recommended by the National School Boards Association;

—verifying the identity of Zoom speakers to confirm they are in fact local;

—invoking existing laws that criminalize fraudulently obtaining access to or violating the terms of service of teleconferencing platforms by, for example, registering under a false address; and

—prohibiting public comments that are obscene, fraudulent or integral to illegal conduct, incite imminent lawless action or threaten violence, none of which enjoy First Amendment protection.

City Council should utilize these options and promptly reinstate remote public comments.

Jim is a retired First Amendment and freedom of information attorney. He served as president of the nation’s largest organization of news media lawyers and as lead newsroom counsel for the Orange County Register for more than two decades. He has represented numerous news entities in freedom of information litigation, including landmark cases before the US Supreme Court.