William McCray has argued for months that the city is restricting his First Amendment rights – first when former Mayor Lois Frankel cut off his criticisms at city commission meetings and now, when Mayor Jeri Muoio turns off his microphone and the city’s TV cameras.
The state’s First Amendment Foundation sides with McCray.
McCray is a former city cop who won a racial discrimination suit against the city, but who also was fired for what the city says was the worst disciplinary record in the police department’s history. He is fighting for his job back and for more than $230,000 that a jury awarded and he appears frequently at city meetings to criticize city officials and employees.
Monday’s commission meeting was no exception. And when he launched into negative commentary against the former mayor, he apparently pushed the buttons of the current one, who pushed a few buttons of her own and turned off the public broadcast of the discussion.
McCray had been quoting negative comments about Frankel said by several members of Muoio’s transition team in a recent Palm Beach Post article. He also referred to the ex-mayor, currently a candidate for Congress, as “Earthquake Frankel.”
“You cannot come up here and say negative things about people,” Muoio shouted several times at McCray. She briefly let McCray read a few comments. Then he was escorted from the podium by Police Chief Delsa Bush, while he shouted that Muoio was “out of order.”
McCray left city hall without a police escort.
Frankel, Muoio and City Attorney Claudia McKenna have repeatedly pointed out that the city’s civility code states that “all remarks shall be addressed to the commission as a body and not to any one member or to the audience.”
The problem arises, when officials allow positive comments about individual commissioners or members of the public, has Muoio has, but not criticism, said Barbara A. Petersen, president of the Tallahassee-based First Amendment Foundation.
“If they invoke the code only when comments are negative, then they have a huge problem,” Petersen said. “Reasonable rules are allowed and those rules can require orderly behavior and prohibit shouting or profanity, but a government agency can’t limit our speech to only that speech that they like. If they allow public comment, they must allow all public comment, both negative and positive.”
City spokesman Chase Scott said that while Muoio told McCray at Monday’s meeting that he couldn’t “say negative things about people,” negative speech is allowed – just not personal attacks.
“You can tell the commission, ‘I hate my taxes. I think you’re not working hard enough for me,’ ” Scott said. “But it says that you are supposed to address the commission as a whole. We’re talking about an individual who came in here and slandered people who were private citizens.”
McCray was referring to Frankel and city administrator Ed Mitchell at Monday’s meeting.
Petersen said Frankel is still a public figure, though. Even Mitchell, who is not elected to office, is a public-private figure by Petersen’s definition – someone who might be public for some purposes and private for others.
“I would argue that the former mayor, who was also a former (state) House member and is now running for Congress, is a public figure,” Petersen said. “But even a public-private figure, the standard for proving slander for remarks made is much higher than the standard for the purely private figure.”
Regardless, the city is still allowing positive comments directed at individuals, which Petersen said goes against its own civility code.
“People come up all the time and say, ‘mayor, you’re the greatest,’ or ‘(Commissioner) Bill Moss is the greatest.’ They love it, and they say ‘thank you very much,’ ” McCray said Wednesday. “The minute you give dissension, you’re a problem and they make special rules for you.”
Scott argued that positive comments are allowable because they don’t harm an individual.
“I don’t think it causes harm to another individual to say something positive,” Scott said. “But it obviously can cause harm if you start slandering.”
Petersen says Scott’s explanation doesn’t meet First Amendment muster. As for turning off McCray’s microphone, Petersen said, that raises questions.
“There’s nothing in the Sunshine Law that requires that meetings be audio- or videotaped,” Petersen said. “But, if the mayor cut off the audio and/or video of a particular speaker but allowed others to be taped, that could raise First Amendment questions.”