The Burien City Council should rescind its legally questionable policy of banning council members from tweeting during meetings, and revoke the censure of a council member who has broken the social-media rule.
How can posting information publicly on Twitter be construed as violating the state’s Open Public Meetings Act?
Ask four members of the Burien City Council. They voted in October to censure their colleague, 34-year-old Councilmember Lauren Berkowitz, for live-tweeting updates from council meetings.
Their logic? That her public posts on social media could violate the state’s open-meeting laws, since they may involve conversations with people outside of the council chambers (sometimes known as busy constituents).
Reasonable people can disagree about whether tweeting during meetings is the best way for elected leaders to connect with voters. But adopting formal rules banning council members from posting to online forums during meetings appears to violate Berkowitz’s free-speech rights under the First Amendment, while doing nothing to improve government transparency.
Burien’s city attorney, Lisa Marshall, recently told the council as much, saying the council’s prohibition on online posts during meetings “would likely be stricken as unconstitutional” if challenged in court. Yet instead of removing the prohibition, the council doubled down on its social-media ban, while clarifying that council members can freely send emails during meetings.
This shows the four council members backing the policy and Berkowitz’s censure — Bob Edgar, Debi Wagner, Steve Armstrong and Mayor Lucy Krakowiak — aren’t truly worried about private conversations happening outside of public view. While Berkowitz’s tweets are public and available in real time to anyone who looks, a citizen would have to submit a public records request to find out what council members are emailing about during meetings.
Mostly, the council’s arguments against Berkowitz’s tweets seem to reflect personal and political divisions on the council, as well as a generational gap when it comes to understanding the public nature of social media.
“I have a Twitter. I watch the Twitter. I see myself being Twittered about to people in the audience during a council meeting,” Wagner, 60, said during a September meeting.
Wagner added: “To me, that is an open public meetings violation, because the person who is doing that could be saying it out loud.”
Yet Berkowitz isn’t shy about speaking up from the dais, even as she intermittently types tweets from her city computer.
The only real violation of the Open Public Meetings Act would be if council members were silently communicating with each other during meetings, such as sending emails or private messages back and forth, said Toby Nixon, president of the Washington Coalition for Open Government.
“It’s not a violation,” said Jim Doherty, legal manager for the Municipal Research and Services Center, an advisory group for city governments. “It is just kind of odd when your job is to be talking to the people at the table with you, instead you’re talking to people outside the room.”
Berkowitz said she pays especially close attention to what happens at the council so she can accurately tweet the details for those who cannot be there.
“I’m being censured for following the law and upholding the Constitution, and yet that’s not what people think when they hear I’m being censured,” said Berkowitz, a labor and employment attorney.
While the specifics of this type of case have yet to be tested in court, silently tweeting is unlikely to constitute an actual disruption that would merit the city restricting Berkowitz’s right to free expression, according to Marshall’s legal analysis.
The Burien City Council should rescind this portion of its social-media policy, along with Berkowitz’s punishment for violating it.
Council members don’t have to like what their colleagues tweet, but they should not ban them from doing it.