Cleveland City Council Admits Its Public Comment Rules Are Probably Unconstitutional

Chris Martin speaking in September Credit: Cleveland City Council/TV20

While attorney and activist Chris Martin gave public comment at a September Cleveland City Council meeting, he began reading off donations received by members from the Council Leadership Fund. He did so, he told Scene, after seeing council members Kris Harsh and Richard Starr lambasting both Issue 38 and organizers on social media.

The fund, which is controlled by Griffin, is a political action committee that has been used to finance council incumbents’ campaigns. This year, it’s also funded the fight against Issue 38.

As Martin read aloud the contributions, Council President Blaine Griffin warned him he was violating the rules for public comment and eventually cut off his microphone.

The move drew the ire of Case Western Reserve University Law School’s First Amendment Clinic, which decried Council’s public comment procedures as unconstitutional.

“Our position is that much of that existing policy is unconstitutional as written,” said clinic director Andy Geronimo. “As a First Amendment matter, the City Council in a limited public forum such as this can’t make what we call viewpoint-based decisions to determine who is allowed to speak and who is not.”

The clinic volunteered to represent Martin.

After meeting with city of Cleveland chief legal director Mark Griffin, chief assistant law director Stephanie Melnyk, assistant law director Patricia Aston and Cleveland City Council special counsel Rachel Scalish to discuss First Amendment concerns on October 13, Geronimo said the attorneys agreed with the clinic.

“They said that they would no longer be enforcing the policies as written and they told us not only that our client could come back and continue his comments, but that there had been a misinterpretation of the policy and so the speakers will be treated fairly regardless of their viewpoint, and also that they were working on revisions to this policy,” Geronimo said. “And in the meantime, they wouldn’t be enforcing those rules to the letter, is what they told us.”

It’s unclear what, if any, changes the Council will make to its public comment policies, but chief of communications Joan Mazzolini told Scene that, “Council agrees that the policy may raise some First Amendment concerns.”

Council itself has been pondering changes to public comment procedures given other recent events, including an anti-Jewish and LGBTQ comment the same night that Martin spoke and scenes from Council’s October 30 meeting when hundreds of Palestinian supporters showed up en masse to lambast some city officials for pro-Israeli public statements given in recent weeks.

Griffin called for the removal of the demonstrators — many of whom carried signs — when they wouldn’t silence their chants during the meeting.

“If we continue to see outbursts and people continue to disrupt the city business like this, we’re going to have to deal with law enforcement and others to mitigate civil unrest,” Griffin told Ideastream. “Because I think it turned from public comment to, quite frankly, civil unrest.”

Council’s public comment procedures, which have been in place since 2021:

ban disruptive or distracting conduct
ban speakers from using “indecent or discriminatory language”
ban signs, banners and posters
ban wearing promoting a candidate, campaign, issue, product or service while speaking at the podium
ban electioneering for a candidate or ballot issue
require speakers pre-register to share a public comment
require speakers address the Council as a whole
require speakers only address the topic they registered to speak about

“Many of the written policies, including, if there was such a written policy–which there’s not–about impugning the character, as a First Amendment matter would seem to allow people to praise City Council but would not allow them to criticize City Council and we see that as a serious First Amendment issue,” said Geronimo of the procedures.

On Friday, the First Amendment Clinic shared a lengthy letter to city and council attorneys detailing its grievances with Council’s public comment procedures.

Among its complaints, the letter says that prohibiting speakers from using indecent or discriminatory language, addressing individual council members or speaking only on one side of particular issues discriminates against certain viewpoints.

On the topic of who can speak at meetings, the clinic wrote that Council shouldn’t limit eligibility to those from the city of Cleveland because residents from surrounding areas still frequent the city and contribute money and labor.

The letter also says attendees should be permitted to hold reasonably sized signs because they’re an accessible alternative for those who can’t stand at the podium, speak and be heard, or simply those who aren’t one of the 10 pre-registered speakers to share their message.

“We remain hopeful that Council will consider our comments and fix the constitutional issues with its policies,” the clinic said on social media. “If it doesn’t—or if it compounds the issue by making the policies worse—our client will consider litigation to enforce these fundamental First Amendment rights.”

Subscribe to Cleveland Scene newsletters.