Berkowitz lawyers say Burien can't enforce ‘no social media’ during meetings 1By Jack Mayne A letter from lawyers representing Burien City Councilmember Lauren Berkowitz says it would be illegal for the city to enforce a blanket ban or censure her for her use of social media during Council meetings. Seattle attorney Stephen A. Teller wrote in a letter sent to Burien City Attorney Lisa Marshall that Berkowitz could continue to Tweet or post on Facebook or other social media. Otherwise the city would violate the Constitution. Hanging in the balance is a proposed censure of Berkowitz for social media use during official council deliberations. The censure move by Councilmember Bob Edgar was slated for Council discussion at the April 3 meeting. It appears that Edgar has withdrawn his censure move following receipt of the lawyer’s letter. All Burien Councilmembers were asked for comment on this development and only one responded. ‘Actual Disruptions’ Teller’s letter said his “firm represents Lauren Berkowitz in relation to her public communications while sitting as a Burien City Council member. “It is our position that it would be unconstitutional for the City Council to censure Ms. Berkowitz for ‘tweets’ she sends out regarding City Council public business. We urge you to tailor any restriction on her public speech narrowly to avoid violating the United States Constitution.” The lawyer said that a Council meeting guideline on banning the use of social media during meetings “is unconstitutional” because it prohibits all “electronic communications while a Council meeting is in session.” Limiting speech at public meetings has been ruled by courts to be valid only when it prohibits “actual disruptions,” said Teller. He cited an example where a California city passed an ordinance forbidding speakers who engage in “disorderly, insolent, or disruptive behavior.” Teller wrote a censure of Berkowitz would be illegal, “and I am assured that she will contest it appropriately.” “We are confident that the city does not intend to violate the U.S. Constitution,” 
Teller wrote. Workplace rules Councilmember Debi Wagner said many businesses restrict the use of social media in the workplace, and believes the Council has the same power in the Council meeting as a workplace. But Berkowitz has said she is not an employee of the city but an elected official who attends a meeting as part of her job so that the Council is not her employer, therefore she is exempt from such workplace rules. Here’s the text of the letter in its entirety:

Dear Ms. Marshall: This firm represents Lauren Berkowitz in relation to her public communications while sitting as a Burien City Council member. It is our position that it would be unconstitutional for the City Council to censure Ms. Berkowitz for “tweets” she sends out regarding City Council public business.  We urge you to tailor any restriction on her public speech narrowly to avoid violating the United States Constitution. It appears to us that Council Meeting Guideline 22.4(1), “Use of Social Media by Councilmembers – Standards of Conduct,” is unconstitutional insofar as it prohibits all “electronic communications while a Council meeting is in session.” As you are certainly aware, in order for a rule limiting speech at council meetings to be valid, it must prohibit only “actual disruptions.”  For example, Costa Mesa, CA passed an ordinance that forbade “members of the public who speak at City Council meetings to engage in “disorderly, insolent, or disruptive behavior.”” Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) (ordinance stricken); see also Ernst v. City of Bellingham, 177 F. App’x 652, 654 (9th Cir. 2006) (action upheld due to actual disruption of City business).  These cases should provide adequate guidance to you so that you can assist the City Council to avoid violating Ms. Berkowitz’ rights. In Acosta, the Ninth Circuit held that by barring more than “actual disruptions” the City violated the Constitution with its ordinance.  A censure of Ms. Berkowitz would be similarly illegal, and I am assured that she will contest it appropriately. We are confident that the City does not intend to violate the US Constitution.  Please feel free to contact me if you have questions or concerns. Thank you for your service to local government.  It is appreciated. Thanks, Steve Stephen A. Teller Teller & Associates, PLLC Seattle
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