The Council has expressed interest in restricting the playing of campaign video tapes during the several periods of oral communications at Council meetings. 

Although the Ralph M. Brown Act (Government Code �54950 et seq.) imposes broad rights for the public to address their governing bodies, rights not found in common law, there is no provision in that statute that requires that local governing bodies allow speakers to use video tapes, Power Point presentations, overhead projectors, or other electronic or technological means of communication.  The Act merely provides:

�Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body . . .  �  (Government Code �54954.3(a).)

The Act, then, gives the public the right to speak to their elected representatives, not the right to play video tapes.

The City Council in 1999, recognized that the City was the center of the media industry and formally acted to allow the use of video tapes during oral communications:

�Video tapes may be presented for showing at any period of Oral Communications or at any hearing by any member of the public, but the member of the public must be present to have the video tape shown.�  (Resolution No. 25,464, March 2, 1999, as subsequently amended by Resolution No. 25,570)

However, in doing so the Council recognized that the use of video tapes in this manner presented �serious legal issues involving, among other things, slander, invasion of privacy, and copyright infringement�.  (Resolution No. 25,464, as subsequently amended by Resolution No. 25,570)

In checking with other jurisdiction, only the City of Glendale regulates campaigning during oral communications, and we are told that this restriction is only enforced with reference to the limitations on speaking to the Council on those matters within its subject matter jurisdiction.  (See Government Code �54954.3)  As we have discussed the matter with neighboring jurisdictions we have found that only about half allow the playing of video tapes during oral communications.

In considering whether to regulate or prohibit just �campaign� video tapes, the question of regulation on the basis of content arises.  Although the Council chambers present a �limited� public forum (White v. City of Norwalk (1990) 900 F.2d 1421; Leventhal v. Vista Unified School District (1997) 973 F.Supp. 951), still similar restrictions on content-based regulation of speech would apply as would be invoked in a full public forum.  In these public forums, the government may enforce a content-based exclusion only by showing that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.  (Frisby v. Schultz (1988) 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420; Pery Educ. Ass�n v. Perry Local Educators� Ass�n (1983) 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794; Carey v. Brown (1980) 447 U.s. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263)   There is also the practical matter that if a restriction on just �campaign� video tapes were adopted, the responsibility would fall on some member of staff to preview each video tape to be certain that it complied with the restriction.  We have been very careful thus far to not preview tapes and to receive them in advance only to assure that they worked with the City�s equipment.  Such a responsibility would put a great burden on City employees to determine what is campaigning and what is not.  It must be concluded that the Courts would likely find that a prohibition just on �campaign� videos would not meet the constitutional test.

As we have noted previously, the use of videos during oral communications, even though not extensive, has generated a number of problems.   These have included difficulty getting the tape to start at the point desired, sound not beginning at the same time as the picture, some tapes of very poor quality, confusion on the part of viewers as to whether a current or previous Council meeting is being viewed, and tapes running longer than the allotted speaking time.  From time to time City staff has even been accused of sabotaging tapes with which, it was charged, they did not agree.  In addition there still remain the concerns originally expressed by the Council relating to the possibility of slander, invasion of privacy and copyright infringement.  A prohibition on the use of such video tapes during oral communications would remove the uncertainty and confusion, and guard against the noted dangers, yet still allow individuals to address the Council with whatever positions or points they wish to make. 

RECOMMENDATION:

Adopt A RESOLUTION OF THE COUNCIL OF THE CITY OF BURBANK PROHIBITING THE SHOWING OF VIDEO TAPES BY MEMBERS OF THE PUBLIC DURING ORAL COMMUNICATIONS AT CITY COUNCIL MEETINGS

cc:        Mary Alvord, City Manager

            Mike Flad, Assistant City Manager

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