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Attorney Warns: Government Officials Cannot Censor Speakers Critical of COVID-19 Protocols During Public Comment Sessions

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Published on: February 12, 2021

AUSTIN, Tex. — At a time when individuals who question COVID-19 protocols are finding themselves increasingly silenced or censored on social media and elsewhere, The Rutherford Institute has issued a strong warning to government officials that the First Amendment prohibits them from censoring individuals who take part in legislative public comment sessions based on the content of their speech. In a letter to the Travis County (Tex.) Commissioners Court, Institute attorneys allege that a county resident had her allotted three-minute speaking time cut short during a public comment period after she questioned the County’s protocol for dealing with the COVID-19 pandemic.

Affiliate attorney Jeri Lynn Ward of Garlo Ward, P.C., is assisting the Institute in ensuring that local governments respect the First Amendment rights of all citizens, no matter their viewpoint.

“Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense, hurting someone’s feelings, safeguarding government secrets, protecting government officials, insulating judges from undue influence, discouraging bullying, penalizing hateful ideas and actions, eliminating terrorism, combatting prejudice and intolerance, and the like,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “While on paper—at least according to the U.S. Constitution—we are technically free to speak, it is becoming increasingly evident we are only as free to speak as a government official—or corporate entities such as Facebook, Google or YouTube—may allow.”

On January 12, 2021, the Travis County Commissioners Court held its regularly scheduled public meeting. Due to a public health emergency declaration, members of the public were barred from physically attending the meeting but were able to view a live-stream video of the meeting and could call in and address the Commissioners for three minutes during a public comment period. Given that a major topic of the meeting was the County’s response to the COVID-19 pandemic, the County’s Interim Health Authority (IHA) attended the meeting virtually, and reported to and answered questions from Commissioners. At 12:16 p.m., county resident Jennifer Fleck was recognized and allowed to address the Court via telephone. Fleck voiced her concerns about the IHA’s COVID-19 protocols as they related to vaccines, mask mandates and the overall severity of the pandemic on community members. Two-thirds of the way through Fleck’s allotted time to speak, the Court Judge directed that her call be terminated, stating “I’m not going to promote people who are saying false things about COVID.” In its letter to the Court Judge, Institute attorneys point out that since the Commission established a public forum by opening its meeting to comments by the public, they are prohibited under the First Amendment from discriminating against individuals based on the content of their speech. Concluding that Fleck was a victim of viewpoint discrimination, Institute attorneys have asked that Fleck be allowed to speak for the full time allotted her in order to vindicate her First Amendment rights.

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The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

The Rutherford Institute’s letter to the Travis County Commissioners Court

Article posted with permission from John Whitehead

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