San Jose could face legal trouble for censoring racist remarks at meetings
San Jose City Hall is pictured in this file photo.

    Emanuel Jacobo said he knew he’d be cut off at a virtual San Jose City Council meeting after quoting a lyric by 2pac using the n-word during a discussion on police reform.

    “Cops give a damn about a negro, pull the trigger kill a n–––– he’s a hero,” Jacobo said, quoting 2pac’s Changes right before Mayor Sam Liccardo muted him.

    Jacobo’s cut-off comment is one of dozens that used profanity or other racial slurs during public comment at San Jose City Council meetings in recent weeks. The problem has become so prevalent that City Clerk Toni Taber had to tweet a warning about it.

    “We have staff ready to mute and remove attendees who use expletives and racial slurs,” she warned.

    San Jose leaders are struggling to stop speakers from flooding the public comment period during Zoom meetings with racist comments, such as “f—- n–––s” and “when are we going to start using mustard gas on these monkeys?” Those individuals, like Jacobo, were quickly disconnected by Liccardo.

    But now some First Amendment experts say that could violate people’s constitutional rights.

    Jacobo, who is a person of color, said he only meant to highlight police brutality by reciting that song lyric. After all, he said, San Jose police struck him with a rubber bullet last month during a protest against the police killing of George Floyd.

    “My intention was not to offend anyone. Do I think it was appropriate? Yeah, I do. I think it was necessary to be honest,” Jacobo told San José Spotlight.

    But censoring people during public meetings — even as they say racist things — has raised a precarious legal situation for San Jose, experts say. Under the constitution, the n-word and other expletives are considered protected speech.

    David Snyder, executive director of the First Amendment Coalition, said what many people consider hate speech is actually protected by the First Amendment, which can make it problematic for the city to regulate.

    “I think the way to delineate this is that many city councils have rules of decorum. They may not want you to use swear words and they may want you to not shout and yell and scream,” Snyder said. “Once speech is actually punished or censored in the sense that somebody is stopped from speaking, I think there’s where you run into problems.”

    Snyder said cutting off speakers based on the content of their speech could run afoul with the First Amendment’s free speech protections.

    City Attorney Rick Doyle agreed that the city walks a fine line between censoring speech and preventing disruption when cutting people off. But despite Snyder’s warning of free speech violations, Doyle said the mayor and councilmembers have the authority to cut offensive comments when used to hurt other members of the community.

    “I think the Brown Act allows the chair to disallow abusive comments and the n-word,” Doyle said.

    Though San Jose has a code of conduct for public meetings that prohibits “abusive language,” Snyder said city leaders should be cautious when it comes to punishment for speech. “I think asking folks to not engage in that kind of speech is one thing . . . but shutting somebody down, telling them they could no longer speak because of mere words, I think would run afoul of the First Amendment,” Snyder said.

    Doyle agreed that some discretion should be used when deciding what is offensive, and quoting a song lyric as Jacobo did could be considered protected free speech.

    “I think that’s something you need to look at — the context of what is said, when it’s said,” Doyle said. “These are split second decisions.”

    Despite the legal barriers, the City Council should ban racist comments from public meetings, said Rev. Jeff Moore, president of the San Jose/Silicon Valley NAACP.

    “That word’s hurtful, and depending on who said it, that Black person in the audience can be very offended and that could cause a confrontation,” Moore said. “For me, as a Black man, I would not want to hear the n-word used — period.”

    The New York City Council recently banned the term “alien” in local laws and documents, opting to use “noncitizen” instead, according to a tweet from New York City Council Speaker Corey Johnson.

    Moore acknowledged that some people, such as Jacobo, might not mean harm when using racial slurs.

    “I would not like to see them start penalizing or fining people for language,” Moore added. “If you’re trying to tell a story or it’s being used to tell a point, you have to be careful with the (mute) switch.”

    Jacobo, who is Latino, said he was wrongfully arrested in 2004 by police because he allegedly looked like a suspect in an assault case. Although he never faced a trial, he claims he paid $10,000 bail to get out of jail.

    His experiences motivated him to support defunding the police and to speak at City Council.

    “Just trust that it was a quote,” he said, “and not me offending anyone.”

    Contact Mauricio La Plante at [email protected] or follow @mslaplantenews on Twitter.

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