The Skagway Borough Assembly is a legislative body, and as such, has no constitutional authority to legislate what its members say and how they say it. There are federal and state laws in place which govern these basic principles, from free speech protections in the First Amendment to the Alaska Open Meetings Act.
A free-flowing debate on an issue can occur anywhere.
At a meeting, if a member gets out of hand, he or she can be gaveled quiet or told to tone down the language. But this is not possible outside the chambers, nor should it be. If a member has an opinion about what took place at a meeting, or even on an upcoming vote, and wants to let the public know that opinion, he/she has every right to state it by any means available.
It’s no different than a senator going on CNN or responding on his Facebook page. If a member of the Skagway assembly wants to run to KHNS or this newspaper to be interviewed on a subject before the body, that is his right. If he wants to rant at the coffee shop the next morning about what a fellow member said, there is no law that can stop him. If he wants to start up a Facebook page or Twitter account and spout off on any issue, he is just using another means of free speech covered under the constitution. If a fellow member objects, then he can call the radio station or paper or start his own social media account and sound off.
This is free speech, a hallmark of our democracy, the same constitutional privilege that allows me to write this editorial without fear of being thrown in jail for my opinion, no matter how disagreeable it may be to some.
Where it gets complicated is in the provisions of the Open Meetings Act. It is aptly covered in our story in this issue. When that law was written, it set boundaries for what are public meetings and public records. Since the act’s adoption, meetings have stayed pretty much the same (except for adding teleconferencing and videoconferencing) but written communication and records-sharing have branched out in many directions, first with the advent of e-mail and now with social media. But the act never really anticipated the immediate give-and-take of social media. And to complicate matters, a response to a social media post by more than two assembly members is being viewed by some as being a public meeting, and could be considered illegal. This is leading some to question how members should communicate, and whether this type of speech should be restrained, which is dangerous.
When anyone in government starts talking about policies to control how something is being said, they can expect to be challenged in court on the principles of free speech.
It will always be a challenge for local governing bodies to adapt to new methods of communicating, but they need to remember whom they serve, and the First Amendment that governs us all and preserves our freedoms. The public wants to hear the debate before, during and after decisions are made on issues, especially controversial ones. To do anything to try and limit debate will cause the public to suspect, and rightly so, that its leaders are trying to control the free flow of information.
Don’t go there. Keep the decision-making in meetings where it belongs, and leave the outside chatter alone. – WJB