Sources reported recently that the city council of Elmhurst, Ill., had asked its attorney to research various definitions of “disorderly conduct,” in the course of considering possible changes to rules of decorum in city council meetings. The move was prompted by an incident in June in which a frustrated citizen rolled her eyes and audibly sighed during a meeting, and was promptly ejected from the chamber.
Darlene Helsop had hoped to speak to the finance committee, but wasn’t given the opportunity to do so. She sighed and rolled her eyes, to the great irritation of committee chairman Stephen Hipskind. “Making faces behind the mayor’s back is disruptive, in my opinion,” he said, and ordered Helsop out. Other council members objected and two walked out. But the council still asked its attorney to consider a rule that would encompass eye-rolling and (presumably) face-making.
He was supposed to report back on July 26, but with major flooding in the area at the time, that meeting was canceled.
It is not entirely clear what the council is considering here. Its rules of order say that the presiding officer can clear the chamber in cases of “disturbance or disorderly conduct.” “Disorderly conduct” is already defined in the city code, as well as under state law, so presumably someone is at least considering an addition or amendment that would cover eye-rolling and other traditional expressions of exasperation.
The city code should not cover such conduct as it stands now, which I guess is good news. Like many such provisions, Elmhurst’s “disorderly conduct” ordinance is vague in places but at least some effort has been made to specify what conduct will be considered “disorderly,” and to recognize constitutional protections. For example, addressing “abusive language” to police or city officials (or anybody else) is prohibited, but only if such words “have a direct tendency to cause acts of violence.” It is unlawful to “incite a riot,” but “riot” is specifically defined as a disturbance that is a “clear and present danger.” Making “unreasonable noises” or using “abusive language” is also prohibited, and that is concerning, but there is at least a general exemption for any “lawful means of expressing public opinion” that appears to incorporate the First Amendment.
As an aside, and just so you know, the definition of “riot” is also limited to “an act or acts of violence by one or more persons [who are] part of an assemblage of three or more persons…” So if you were wondering whether it was possible to have a “riot” involving just two people, now you know. Also helpful: Section 51.18 of the city code makes it illegal to discharge any piece of artillery inside city limits without prior written permission from the city council. So don’t even think about bringing an artillery piece to a council meeting, no matter how upset you are.
You should be able to roll your eyes with impunity, though, because it seems pretty clear that the conduct in question here would be protected by the First Amendment. Eye-rolling conveys a message, typically something like “I believe that what you just said and/or did is utterly stupid and its stupidity went well beyond what I, as a reasonable human being, should be expected to bear.” (Actual content may vary.) Not only is that a message, conveying it to a government official makes it a political message, and so any regulation of it is very likely to be struck down. Even a “time, place, or manner” restriction on eye-rolling would have to be narrowly tailored to serve a “substantial government interest,” and the mayor’s hurt feelings are not going to qualify.
Actually disrupting a meeting might be a different story, and that appears to be the focus of proposed “decorum” rules being considered by the city council of Boulder, Colorado. But there, the new rules were prompted by incidents of jeering, chanting, foot-stomping, and in one case, undressing. There does seem to be a substantial government interest in getting on with public business without being interrupted, although I might be persuaded to support a right to political nudity. But, as an editorial in the Boulder Camera notes, the proposed rules go too far when they prohibit merely “impertinent” or “contemptuous” remarks, because if the First Amendment protects anything, it protects the right to be impertinent to power.
According to some reports, the taunting of British soldiers was a factor in the Boston Massacre, and so I think we can conclude that the freedom to mock the powerful was important to Americans from the very beginning. (Also important: not standing near people who taunt soldiers.) Many are rightly concerned with the potential freedom-crushing power of the federal government, but let us not forget the evil that can be done by even the lowest of low-level officials wielding a mere city code. Cheers for the many city councils that have tried their best to get on with business while respecting the right to free speech. Eye-rolling for Elmhurst.