2019-01-10 / Editorial

Resident: Mayor took away right to free speech

Guest Column
By Jason Litalien

At the Dec. 18 Biddeford City Council meeting, Mayor Alan Casavant cited rules, for the roughly three members of the public that were present, that he claimed applied to the public address portion at the end of the meeting. He said it was not a discussion so they would not reply to us, and then gave us a list of things we were not allowed to say. I informed him that the council may not restrict the content of our speech because that would violate the First Amendment and he replied, “Those are the council rules.” Ironically, his reply broke the rule he just cited to us.

At the next meeting, held Jan. 3, I tried to explain to the mayor that in the council rules he claimed to cite at the previous meeting, the only portion that applies to the public address near the end of the meeting is Section A-1 Rule 1(j), which states that we are limited to 5 minutes to speak on an issue that was not on the agenda and that the council has control over. That is all. It does not limit us any other way and this rule is fine because it is a valid time, place and manner restriction based on supreme court decisions.

Section A-3 Rule 3(q)6 loosely resembles what he stated at the Dec. 18 meeting and Section A-3 Rule 3(q)7 states that we cannot discuss litigation against the city. Both of those rules only apply to the public address portion of agenda items, not the public address near the end of the meeting, but that does not matter because both rules are unconstitutional and I tried to explain why, but he was not interested. The city did not broadcast or record the meeting, but someone was recording it with their phone. When watching the video, at the 2 minute point, while I am explaining to him why the rules are unconstitutional, you see the mayor picking his teeth, clearly demonstrating his level of interest, much like a teenager in one of his classes may have done.

The U.S. Supreme Court in Perry Education Association, stated that if the government has provided a “limited public forum” or “designated public forum” for open-ended expressive activity, which is what the public address near the end of the meeting is, then content restrictions are analyzed under strict scrutiny. This means you must have a (1) necessary and compelling reason to restrict free speech and (2) your restriction must be the least restrictive means of meeting that compelling reason. Public official’s hurt feelings are not considered necessary nor compelling.

There is a long list of Supreme Court decisions that apply to this very issue. Police Dept. City of Chicago v. Mosely, New York Times v. Sullivan, and Ward v. Rock Against Racism are some of the most known cases.

Justice Frankfurter stated in Baumgartner v. US, “One of the prerogatives of American citizenship is the right to criticize public men and measures.” That meant the freedom to speak without moderation. The Federal District Court enjoined the enforcement of a content-based school district bylaw designed to protect school employees against attack in Baca v. Moreno Valley. The court stated it was unconstitutional for the government to restrict members of the public from criticizing public officials.

At the end of the meeting, the mayor addressed the council and ignored everything I had just explained to him. He claimed that we the citizens do not have a right to address the council, that they give us that right and they can control what we are allowed to say. He was partially right in saying that we do not have a “right” to address the council, but if the council gives us permission to address it, then they must follow the rules set by the Supreme Court regarding the First Amendment and restrictions on the content of speech. I think what bothers me the most is that a former history and civics teacher does not understand how our government works. The supreme court decides if what the government does is constitutional, not the mayor of Biddeford, Maine. Not only did he cite the wrong council rules when he tried to restrict my free speech, but then he just disregarded tens of thousands of court decisions and chose instead to ignore me and pick his teeth. He even reiterated that we must follow his rules. I say “his” rules because they are not the council rules and they are not enforceable because the constitution prohibits it. The Founding Fathers included free speech in the constitution to ensure that we would have a way to address the government without fear of reprisal. They felt it was so important, that they made it part of the First Amendment in the Bill of Rights. It is time the mayor understand that this is our city and he is not dictator for life. He is not doing us a favor by “allowing” us to speak, we did him a favor by allowing him to sit in that seat, that we own. The supreme court has stated that free speech is a fundamental right, which means we are born with that right as Americans. The constitution does not grant us that right, it only restates it, as a guarantee, so that government officials cannot take it away simply because they do not like what or how you say something.

The council should probably address the invalid rules and remove them, unless the intent of those rules is only to intimidate citizens into not addressing the council. If the mayor wants to eject me just because he doesn’t like what I say, which is usually just repeating things he and the councilors have said in public, I will leave peacefully, but there will be consequences.

I spent almost 13 years of my life defending the constitution and then I went to law school so I could continue to protect our rights and help people. The intimidation and improper behavior must end now. Our rights have been violated long enough and it will not go on any longer. The Federal District Court is 18.1 miles from city hall and I can be there first thing in the morning if he continues to abuse the little power that we the people have temporarily given him.

About the author

Jason Litalien is a Biddeford native and graduate of Biddeford High School. After high school he served in the Air Force for almost 13 years and returned home and opened a restaurant. After closing the restaurant, he attended the University of Maine School of Law and earned a Juris Doctor degree in 2017. He is currently preparing for the bar exam. Litalien filed a lawsuit at York County Superior Court against the city of Biddeford in October hoping to stop the installation of parking meters downtown, a hearing is expected to be scheduled this month.

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