After losing in federal court more than a year ago to a retired union steward, the Portland City Council wants a legal rematch over its right to exclude disruptive audience members from meetings.
It's likely to get one, with the ACLU threatening a lawsuit. But the city will have better odds this time around, some legal experts say.
On Wednesday, the City Council is expected to consider a draft policy in response to more than a year of repeated disruptions of city meetings by a concerted group of audience members who heckle, jeer, shout at other testifiers and officials, and express political views on homelessness and police.
The policy, if adopted, would echo other cities' rules in allowing officials to ban someone from future meetings for a limited period of time. But Portland's policy is under a microscope, with the ACLU of Oregon saying it goes too far.
"The city already has the authority to remove those who cause disruptions," ACLU legal director Mat dos Santos said recently.
But currently, the city can only eject an audience member for the remainder of the meeting, according to a ruling by federal Judge Michael Simon on Dec. 31, 2015. The ruling, in response to a lawsuit filed by activist Joe Walsh, found that banning someone from future meetings due to past disruptions would violate the First Amendment.
"Our democratic republic is not so fragile, and our First Amendment is not so weak," Simon wrote.
The limited nature of the exclusion powers under Simon's ruling, however, has caused some of the people disrupting meetings to openly scoff and mock city officials' threats to exclude them, since they can simply return and engage in similar behavior at the next meeting.
So the council is gearing up for a rematch, with a more specific policy. That's in keeping with a footnote of Simon's, saying that the city could craft a more carefully tailored approach.
Two legal experts say the city's new policy has a better shot than the last one.
While Simon is a well-respected judge and a recognized First Amendment expert, this specific issue appears to have never been addressed by a higher-level court such as the 9th U.S. Circuit Court of Appeals or the U.S. Supreme Court.
"This is just one judge, so a different judge might look at the case differently," said Jim Oleske, a professor who teaches constitutional law at Lewis & Clark Law School.
He said the city's new draft policy does appear to be more narrowly crafted, giving the city less discretion in who it ejects.
He said the recent months of frequent disruptions also could bolster the case that the city needs more tools than just ejecting people from that particular meeting.
The disruptions have taken place not just at council meetings, but at police review board meetings. At times they've prompted the city to consider efforts to bar the public from the meetings, and also have prompted discussion of beefed-up security measures that would make City Hall less accessible to the public.
Amy Watson, a consultant to the city, wrote in an op-ed in The Oregonian that the fact that several of the people disrupting meetings say they have a history of mental illness does not excuse the planned disruptions or verbal abuse.
"This small group of mean-spirited individuals cannot be allowed to dominate meetings and drown out other community members," she wrote.
That said, the fact that the city hasn't taken a harder line against the disruptions could now undermine its legal chances. Simon argued that the city should try lesser alternatives before depriving people of their free speech right to testify on city matters, Oleske noted. So it could work against the city that Mayor Ted Wheeler and his predecessor, Charlie Hales, have tolerated many disruptions without ejecting people, but now say they need a new policy.
The fact that this is an untested issue "makes it all the more difficult to predict how a case might come out," Oleske said.
Norman Williams, an associate dean and constitutional law professor at Willamette University College of Law, says the city has a good chance of winning, especially if the case reaches the 9th Circuit or U.S. Supreme Court.
Williams noted that the U.S. Supreme Court in 1970 ruled that a repeatedly disruptive defendant could be deprived of his Sixth Amendment right to attend his own trial. Arguably, Williams said, "You have a greater right to attend your own criminal trial by virtue of the Sixth Amendment then you do to attend a City Council proceeding by virtue of the First Amendment."
"I am a civil libertarian, so I am sympathetic to the ACLU's position here, which is you don't want to empower the council to start excluding people too willy-nilly," he added. "But what's important to my mind as a civil libertarian is the right of other citizens to go to the City Council meeting to try to make their voices heard. (They) are getting drowned out when this stuff happens. I don't see this as the protesters versus the city, I see this as the protesters versus other citizens whose voices get lost when the chaos erupts."