Legal Actions Claim San Diego City Council Is Violating First Amendment Rights and Brown Act by Muting Speakers

by on November 11, 2022 · 4 comments

in Ocean Beach, San Diego

Lori Saldaña, the former mayor and congressional candidate, was “muted” during an Oct. 27 meeting and “cut short” at a Nov. 1 meeting of the City Council.

Former Candidate Lori Saldaña “Muted” During Public Comments on Oct. 27 and Nov.1

By Ken Stone/ Times of San Diego / Nov. 4, 2022

The San Diego City Council is violating the First Amendment rights of citizens with a policy barring certain public comments at council meetings, a lawsuit filed last Friday, Nov. 4 alleges.

Civil rights attorney Bryan Pease, a former City Council candidate, is asking the San Diego Superior Court on behalf of the Animal Protection and Rescue League, which he chairs, to halt the council policy.

He says the suit is a response to the council “prohibiting public comment at council and committee meetings that the meeting chair believes are ‘for the promotion of any political candidacy or for the promotion of any ballot measure.’”

Recent council appearances by former Assemblywoman Lori Saldaña triggered the Pease suit as well as a cease-and-desist letter that same Friday by attorney Cory Briggs to Mayor Todd Gloria and the council.

Briggs cites the state’s Brown Act, regarding open meetings, and its mandate that members of the public have a chance to address legislative bodies directly.

Saldaña, the former mayor and congressional candidate, was “muted” during an Oct. 27 meeting and “cut short” at a Nov. 1 meeting, says former NBC San Diego newsman Paul Krueger.

In an email Friday to City Attorney Mara Elliott, Krueger said Councilwoman Marni von Wilpert interrupted Saldaña and ordered the city clerk to “Please mute the caller. Mute the caller” for comments critical of Councilwoman Jen Campbell.

“This is political speech which is not allowed on our city council non-agenda public comment,” von Wilpert is quoted as saying. “You can continue speaking, but we will not allow any political election speech here.”

On Nov. 1, says Krueger, council President Sean Elo-Rivera interrupted Saldaña’s comments “about her concerns regarding the council’s actions related to Measure C, the Midway/Sports Arena site selection process, the influence of campaign contributions on that issue, and the questionable role that one of Mayor Todd Gloria’s political allies may — in her opinion — have had in that process.”*

The Pease lawsuit seeks a peremptory writ of mandate ordering the city not to censor public comment and restore all deleted public comments to the official video archives of those meetings. He’s also asking for attorneys fees.

On Monday, Pease told Times of San Diego that he’s not working with Briggs on the suit but would welcome him filing any action on behalf of his clients as well.

His suit references the Saldaña interactions but doesn’t name her as a plaintiff.

“I’m in touch with Lori in general and very much like what she is doing to keep our elected officials accountable,” Pease said via email.

Asked whether his group, known as APRL, should be able to sue since it hasn’t been blocked from commenting at council meetings, Pease said:

“All members of the public or organizations including APRL have been harmed by this new policy already. While Lori could bring a specific claim regarding the censorship she experienced, this does not preclude any other members of the public from bringing suit to enjoin this unconstitutional and illegal policy.”

Briggs’ cease-and-desist letter takes a different tack than Pease’s.

“It looks like he is planning to bring an action based on [the] Brown Act, which would be great too,” Pease said. “The APRL suit takes a slightly different approach simply based on violation of the right to free speech in the First Amendment and California Constitution Article I, Section 2.”

Pease sent his own cease-and-desist letter to Elo-Rivera on Thursday — a day before Briggs’.

Council members von Wilpert and Elo-Rivera didn’t immediately respond to requests for comment.

The City Attorney’s Office “will not be commenting on the case,” a city spokesperson said.

Former Councilwoman Donna Frye, a board member of the open-government group Californians Aware, said City Council Policy 700-37 — being cited by the council members for the limits on public comments — “may not be new, but how it is being interpreted certainly is.”

Frye said she agreed with Pease and Briggs that the councilmembers’ interpretation of the policy and subsequent action is a violation of the Brown Act.

{ 4 comments… read them below or add one }

kh November 11, 2022 at 12:09 pm

Interesting. Council Policy 700-37 addresses their free government TV channel. It defines it’s purpose of serving open government to the public, and how it cannot be co-opted for certain other purposes. Public comments made during a city council meeting are part of the public record. Nobody on council seems to mind when they waste the public’s time bloviating and kissing each other’s butts.

“2. The Government Access Channel shall not normally be used for the telecasting of programs whose major issue is one which is controversial and which has not been decided by the City Council or the voters.
a. The Government Access Channel shall not be used for the promotion of any political candidacy or for the promotion of any ballot measure.


“d. Notwithstanding (meaning: REGARDLESS OF) the above, this policy shall not be construed to discourage the use of the Government Access Channel for the telecasting, either in whole or in edited version, of any meeting of the City Council or its committees or other City boards, commissions or committees, when the subject under consideration is of interest to the public in the City of San Diego, irrespective of the fact that the subject(s) under consideration may be controversial.”


kh November 11, 2022 at 12:46 pm

Here is a link to the Oct 27th meeting where she was interrupted and reprimanded by the committee chair:

On the November meeting, she was cut off at 2 minutes like everyone else, but then she was reprimanded by the council president and warned about future public comment being censored.


retired botanist November 11, 2022 at 4:49 pm

This is very interesting. Here in DC, i participate in a weekly zoom with 3 (retired) lawyers, all centrist Dems, and we banter over the weekly political events, obviously me the outlier! :-) B/c its VA/DC/swamp politics, I feel they often don’t quite get the hurdles, and shackles, and benefits of participating in local, municipal politics. I’m going to try and fwd some of this discourse and see what their reaction is..: of course they naturally also view CA as some outlier that doesn’t necessarily reflect the rest of the country, but I would counter that this is precisely the sort of issue, that citizens who try to be involved at the basic level, meet. Its one thing to donate $, its another to donate voice, and when that is censored, well, where are we?


Lisa November 11, 2022 at 7:32 pm

Good ole “progressive” Sean. 9 sycophantic go along ne’er do wells on the Council are going to be something


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