tions on speakers’ comments. And the key term is ‘reasonable.’ Why is it reasonable to know exactly who is speaking, especially since there is a tradition of constitutional conclusions that people do have a First Amendment right to speak anonymously when addressing the government or talking about government issues?” The Brown Act is clear in prohibiting government bodies from requiring citizens to sign in as a prerequisite for attending an open meeting as it may deter people from coming and participating, Francke and Fletcher both point out. But, Scheer said, attending a meeting and addressing a government body are two very different things. (Virtually all local governments ask residents to identify themselves and state their area of residence before addressing councils, boards and commissions during public comment periods, though enforcement of the provisions vary greatly). Sure, Scheer said, there are some cases that recognize that the constitution protects the right to anonymous speech in broad terms. But can that really carry over into a public government meeting and, perhaps more importantly, should it? “The problem is the context we’re talking about,” Scheer said. “It is impossible to both attend, stand up and be seen in front of everyone else at the meeting and be anonymous. The constitutional argument doesn’t really apply given that context. But as a policy matter, I think it’s fair to ask, ‘Why shouldn’t any legislative body be able to know who is addressing it, who is standing before it and urging some action?’” Think of the myriad of special interests that constantly lobby governments, Scheer said. Do we really want them doing so without identifying themselves? “Imagine Congress holding a hearing and people getting up and commenting on a provision of a major bill that’s being drafted and refusing to identify who they are or who they’re being paid to represent,” Scheer said. “That would be silly, and I think it would be no less silly to argue that you have a right to participate that way in front of a local government body. … I care about these issues, but I think that democracy, in fact, depends on people knowing who is speaking to them and that there’s nothing wrong with requiring that people stand behind their words and identify themselves if they want to participate, if they want to be civically engaged and active.” Francke agreed there shouldn’t be any problems with folks identifying themselves when addressing local government in most cases. But, he said, there are some situations that warrant anonymity. “In most cases people will not have a problem giving their true identity because
they’re trying to get help with something or trying to address a problem, but in some cases people want to express a controversial viewpoint that they believe could leave them open to retaliation if their identities are known and traceable,” he said, adding that people in those situations should be allowed to participate. Fletcher said it’s important to keep in mind that this is an issue that could carry some consequences for growers. Not only does marijuana remain federally illegal, he said, but a Department of Justice memo recently surfaced urging U.S. Attorneys to seek out and prosecute growers who are politically active. “I see this issue as fundamentally different,” he said, adding that the growers among the dozen-or-so people he represents are truly scared of outing themselves in a political setting. “This issue has created a class of people who are politically disenfranchised. They’re called names: douchebags, potstitutes, grow hoes and other derogatory things.” Fletcher said he’s glad the planning commission has removed its sign-in sheet. However, he said, that doesn’t undo damage already done. Fletcher said the county needs to declare its previous meetings null and void and hold them over again. However, he said his clients may be amenable to a compromise if the county were to hold a pair of well-publicized public meetings on the topic to gather additional input on the draft ordinance. No matter how the county opts to move forward, Francke said there’s another way for folks who work under the cloak of prohibition to participate in the process if they choose. They can always lie. “People are, of course, free to use any name,” he said. “They’re not under oath and there’s no legal compulsion to give their actual identity. So, if they’re nervous about their name being traced, they can always use a phony one.” l
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