Skip Hall, the mayor of the city of Surprise, had 32-year-old Surprise resident Rebekah Massie arrested during a recent Surprise City Council meeting’s call to the public.
Massie was present to criticize a 4.4% pay raise for Surprise City Attorney Robert Wingo, alleging that Wingo had committed violations of state law and the Arizona State Bar’s standards when he failed to respond to election issues raised about the town clerk during the recent primary election.
She also noted that Wingo is already the fifth-highest paid municipal attorney in Arizona and 11th-highest paid city official in the Phoenix Valley, earning $265,790 per year — in a city of only 158,200 residents.
All the comments she made were on matters of public record, items reported in local media outlets or facts obtained through public records requests.
Hall repeatedly interrupted Massie while she was making her comments to claim she was violating a new policy that council recently imposed that aims to ban complaints or criticisms regarding city employees during the council’s public comment period — a “rule” that is an open and naked violation of citizens’ First Amendment freedom of speech and First Amendment right to criticize public officials: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Hall and his council can draft whatever unconstitutional policy they want and slap it on a form before a council meeting, but citizens cannot surrender their First Amendment rights to address their government — and respectfully but loudly, forcefully and factually criticize officials.
No slip of municipal paper trumps the U.S. Constitution. Government can narrowly regulate time, place and manner — e.g., a three-minute public comment at a meeting — but not the content — of public speech.
Massie was not disruptive, but was calmly expressing her political views to her government. However, Massie accurately pointed out that if she wanted to swear at council for her three minutes, the First Amendment wholly protects her right to do so.
The sentence on the city form the mayor alleged Massie violated reads: “Oral communications during the City Council meeting may not be used to lodge charges or complaints against any employee of the city or members of the body ….”
However, the document contains no provision that “by signing, I waive my First Amendment rights,” nor would such a statement even be legally enforceable if included. One can only cede constitutional rights under narrow circumstances, like a suspect waiving a right to a jury trial in exchange for a plea agreement with prosecutors — and certainly such a waiver on a slip of paper is legally non-enforceable as a condition of Massie exercising her other First Amendment right: Freedom of speech. The U.S. Supreme Court has very thin case law regarding First Amendment waivers and none that would grant the city of Surprise the ability to limit the content of speech. Any judge would laugh the city out of court if for trying to illegally impose the regulation that Hall clung to.
Hall couldn’t stand the criticism of his ally and had Massie arrested. She is now facing charges of trespassing, obstructing government operations and resisting arrest.
Despite our often spirited and heated political debates in the Verde Valley, no mayor and no council here have dared to be so foolish.
This is the kind of government censorship the Founders feared, which is why they drafted and passed the First Amendment and the U.S. Constitution’s Bill of Rights 233 years ago — and why courts routinely rule in favor of protecting the rights of citizens from the overreach of power-hungry petty despots who want to silence public criticism.
The Foundation for Individual Rights and Expression fired an opening salvo with the simple tweet: “City of Surprise: We’ll see you in court,” as it is now preparing a lawsuit against the city on Massie’s behalf for the explicit and unconscionable violation of her First Amendment of rights, adding, “The First Amendment protects Americans’ right to criticize public officials without being arrested.”
FIRE is a Philadelphia-based civil liberties group nonprofit founded by University of Pennsylvania historian Alan Charles Kors and lawyer Harvey Silverglate, who served on the board of the American Civil Liberties Union and taught at Harvard Law School and the University of Massachusetts. FIRE is taking on the free speech cases that the ACLU has largely or completely abandoned in recent years.
This is a case FIRE will win, if it even gets that far — if the city of Surprise doesn’t immediately apologize, drop the charges and issue a mea culpa. Hall will be out of office in November and Surprise Mayor-elect Kevin Sartor has already condemned him, telling the Arizona Daily Independent, “As Americans, our right to free speech is fundamental, especially when it comes to holding our government accountable. What happened to Rebekah Massie is unacceptable. No citizen should ever be arrested for voicing their concerns, especially in a forum specifically designed for public input.”
We trust every elected official in the Verde Valley agrees with Sartor without reservation or limitation.
