The City Attorney’s public memo regarding council rules has been released, affirming the privileged advice we have received previously. I hope that rhetoric about lawsuits will now be put aside and we can work together to continue refining our council rules in order to be more effective representatives for the residents of Ann Arbor.
For those interested in this issue, the salient points in the memo are as follows:
A majority of federal courts have concluded that legislative bodies may take certain actions in response to member speech, such as reprimand or censure, so long as the action does not prevent the member from carrying out their elected duties. In fact, many courts have concluded that such legislative actions, as statements of the body, are themselves protected by the First Amendment.
An action that occurs after the speech is expressed, such as a reprimand or censure, is not a prior restraint.
The “chilling effect” argument doesn’t apply because most of the cases concerning reprimand hold that reprimand is not a punishment, does not prevent a council member from performing their official duties, and therefore does not deter an elected official of ordinary firmness from exercising constitutional speech.