Miami Mayor's Chief Strategist Proposes Insane, Unconstitutional "Civility Court"

First Amendment lawyers say "civility court" is a slippery slope into restrciting free speech.
First Amendment lawyers say "civility court" is a slippery slope into restrciting free speech.

Bad ideas have had free rein in 2016. From a Muslim registry to a taxpayer-funded Pitbull music video, there's a lot for America to be embarrassed about in the past 12 months.

But the year isn't over yet, and neither are the awful ideas. This past Sunday, the Miami Herald published a skepticism-free story proposing something called a "civility court," in which regular people could be forced to answer for their "bad," but not criminal, behavior in front of a judge. Even worse, the person pitching the idea is a licensed Florida attorney and the chief strategy adviser to Miami Mayor Tomás Regalado.

At an editorial board meeting where Mikki Canton pitched her idea, others mentioned the viral video of a white man berating a black barista at a Coral Gables Starbucks as an example of someone who might be sent to such a civility court. The man yelled that he had voted for Trump and claimed "anti-white discrimination."

"Sometimes what you do doesn’t rise to the level of breaking the law, but it sure does break civility rules," Canton said. "If I were the judge I’d say, 'What was it' and 'Where did he commit this offense that didn’t rise to the level of breaking the law,' and I would put him out there and make him be the spokesperson and make him work some community hours."

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Do we really need to spell out why this is a godawful plan? First of all, this is Miami — 95 percent of the population would be in the civility gulag if yelling and swearing were punishable offenses.

But the idea is also blatantly unconstitutional. Two First Amendment lawyers were stunned when New Times told them of the proposal.

"I must confess, I have a visceral reaction to this kind of thing," says Sandy D'Alemberte, a Tallahassee attorney who successfully fought to allow video cameras in Florida courtrooms and the former president of both the American Bar Association and Florida State University. "As much as I'd like people to be civil, and I try to be civil myself, I don't think we can get into this. There are too many judgments, and it's too easy to drift into an imposition on First Amendment freedoms."

Tom Julin, a First Amendment attorney in Brickell, agrees the idea flies in the face of free-speech laws.

"Obviously, people have a right to be very vocal and uncivil, if you will, to use swear words and very strong language. In the United States, the rule has been that government cannot punish that type of speech," he says.

Canton did not respond to a phone message and email from New Times requesting comment about the idea. (Update 3 p.m.: In a follow-up email, Canton emphasized that her proposal is not connected to her role as Regalado's advisor and that there are no plans in the city to create such a court).

In the case of the aggressive man at Starbucks, Julin says punishing someone for making a rude political statement is "really just the opposition of the approach I think the city should take."

"Saying 'I voted for Trump' or 'I didn't vote for Trump,' people feel very strongly about these issues, and the tradition in the U.S. has been that we want to hear viewpoints of people upset with the political process so we can respond to it," Julin says. "We do not want to suppress that."

Besides obvious questions about how such a court could enforce "civility guidelines," D'Alemberte says even coming up with a list of community standards would be dicey, especially in a multicultural city such as Miami.

"Trying to draw up those guidelines strikes me as a terrible task. I would not want to be called on to draft such guidelines even if I thought I could do so constitutionally," he says. "So much of it is just a matter of culture. What I think is rude when I get to New York may not be perceived by someone in New York as rude."

The good news: D'Alemberte says Florida law prohibits cities from making their own courts; the state constitution allows only for the Florida Supreme Court, the district courts of appeal, circuit courts, and county courts.

"I think this is a fool's errand," he says, "and I hope it does not go further."

Clarification: An earlier version of this story reported that in the Herald meeting, Canton had brought up the irate Starbucks customer as someone who could be sent to civility court; Canton, however, says someone else at the Herald meeting raised that incident.


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