Attorney believes free speech was restricted at Azusa planning commission meeting
By Daniel Tedford, Staff Writer
Posted: 02/12/2010 06:03:02 PM PST
AZUSA - A free speech attorney said Friday he believes the denial of a PowerPoint presentation at a public hearing Wednesday was "constitutionally suspect."
At the third public hearing regarding a new mining proposal in Azusa, speaker Daniel Hyke was denied the use of a PowerPoint presentation by Planning Commission Chairman Christopher Dodson.
Dodson's action provoked shouting and claims that freedom-of-speech rights were being violated Wednesday during the review of Vulcan Materials Co.'s proposal to shift mining operations along the Azusa-Duarte border.
Hyke, of Duarte, was permitted to speak after police were summoned to the hearing, but without the PowerPoint.
Terry Francke, general counsel for Californians Aware, a nonprofit organization that supports open government and free expression, said Hyke's free speech was infringed.
"The chair's denial of a PowerPoint-aided presentation of no more than five minutes ... was an unconstitutional ... restriction on speech," Francke said.
At the hearing Wednesday Dodson said he was trying to maintain a smooth
meeting that wasn't delayed by the setup of elaborate presentations.
City officials believe Dodson was within his rights.
"The city planning commission chair decided that because there was over 50 speakers signed up to comment that evening at 5-minutes apiece, that in order to run an effective and efficient meeting he was going to eliminate the PowerPoint presentation option to the public," Assistant City Manager James Makshanoff said. "In talking to the city attorney she cited different rulings that legislative bodies have the authority to limit speech through the orders of decorum including City Hall media equipment."
On Friday, Dodson declined comment except to say he was advised by the
city attorney that he wasn't infringing on anyone's rights by denying the
PowerPoint.
"Restrictions on public comment must be reasonable," City Attorney Sonia
Carvalho said in an e-mail to city officials. "Courts balance the right of
the public to address a public body with the need to ensure public comment
does not hinder the smooth and efficient legislative function of the
meeting."
Carvalho cited White v. City of Norwalk as the basis for her argument.
Hyke, who is a science teacher at Alhambra High School, said he believed he had clearance to make a PowerPoint presentation at the meeting. When he was denied, he felt his ability to convey his point was deeply impacted.
"Oral communication is fine, but part of the First Amendment protection
is the opportunity to communicate visually, too." Hyke said. "A picture is
worth a thousand words. I had 11 slides to show, so I lost 11,000 words."
Hyke is seeking an attorney in an effort to pursue the matter by filing a
complaint, he said.
At least two people planned to do PowerPoint presentations for their
public comment at the hearing, but none were permitted, Makshanoff said.
State law says speakers have the right to "ample alternative channels of
communication," Francke said.
Due to the minimal delay in set-up, the city's justification for denial is weak, Francke said. Considering each person speaking was against the project and Vulcan Materials was allowed about 15 minutes for a presentation, Dodson's decision gave the applicant an unfair advantage, he said.
"The chair's rule in effect says that only applicants for - not opponents or critics - may have the advantage of presentation technology," Francke said. "That is not a content-neutral restriction. It does not further a significant government interest when waiving the restriction would lengthen a four-hour proceeding by only a minute or two."
And although he was allowed to speak and may have had other communication channels available, how "ample" they were in comparison is "dubious", Francke said.
Vulcan has a permit to mine 190 acres near Fish Canyon, although it owns a 270-acre property. The company wants to exchange the ability to mine 80 acres of land on its eastern property line in Azusa for permission to mine 80 acres near its western property line, along the border of Duarte.
For Vulcan to move forward, Azusa officials would have to approve the plan to mine the western 80 acres.
In a western mining operation Vulcan has included a new technique in its plan that would contour the hills to look more natural.
The environmental report listed the view, or aesthetics, to Duarte as the only significant impact of the proposal.
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