Lawyer: Policy silencing council members ‘unconstitutional’

PORTSMOUTH, Va. (WAVY) — The constitutionality of a policy aimed at silencing Portsmouth city council members is being called into question.

In September, a majority won in prohibiting council members from discussing closed session items with the public. Earlier this week, WAVY.com learned the city dished out its first violation notice to Councilman Bill Moody.

Moody paid the fine publicly at the regularly scheduled meeting Jan. 12.

“I had $1,500 in which I paid the fine,” said Moody. “I had $1,500 in my right hand saying I am not going to be muzzled and that this $1,500 is for any future violation.”

Moody says the letter he received from the city did not specify his alleged wrongdoing, but he believes the punishment stems from a Facebook post in early December warning residents about a discussion on the Confederate monument downtown.

In the two days since paying the fine, more than 50 people have donated a combined $1,800 to help Moody pay the penalty and any others he receives.

Bryan Scannell, who started the fundraising page, says it is disappointing residents have to pay for transparency.

“I was so angry when they fined Councilman Moody. I just thought it was an injustice,” said Scannell. “I think a lot of people are angry about the way Portsmouth government is operating. They don’t feel as though our representatives are keeping us informed about what they are doing.”

Moody says he appreciates the support, but he wants to be refunded by the city. He says he believes the policy is unconstitutional, and so does first amendment lawyer Frank LoMonte.

“It doesn’t seem like it could be conceivably constitutional for a city council to impose a fine on somebody for doing nothing more than giving the public a head up about what is going to be discussed in a government meeting,” said LoMonte. “That’s very clearly constitutionally-protected speech.”

Moody says he’s already reached out to the American Civil Liberties Union for guidance.

LoMonte says he wouldn’t have paid the fine in the first place.

“If I were in his shoes I would tear up the notice, laugh at it and tell the city council to come after me, because they don’t have the authority to enforce fines for making them angry,” said LoMonte.

Moody tells WAVY.com he plans to be transparent with the public even it means getting repeatedly cited.

10 On Your Side reached out the city attorney, city manager and the mayor to hear their case for the policy’s legality, but those calls have not been returned.

The city treasurer confirms he received Moody’s payment of $1,500.

They city has not said which city fund the penalty money will go toward.

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