Rules made up on the spot. Vague restrictions only enforced against critics. As calls for a ceasefire in Gaza grow Asheville Mayor Esther Manheimer and city council become increasingly vindictive in curtailing public comment they don’t like

Above: Asheville Mayor Esther Manheimer. File photo by Max Cooper

During the open public comment period at the Jan. 23 Asheville city council meeting Noor Abdelfattah asked all the officials who “condemn the death of over 26,000 Palestinian bodies who look like me and speak my language and if you understand that their death and destruction cannot morally be written off as self-defense please stand up now.”

When none did Abdelfattah asked those in the audience — that night over 20 people spoke in favor of a resolution calling for an immediate and lasting ceasefire — who condemned those deaths to do the same. A wave of people stood up and Abdelfattah told council “Shame on you.”

Mayor Esther Manheimer quickly told them that wasn’t allowed, directing the public to “remain in your seats and not approach council.”

But no such ban on standing up exists within city council’s rules, and no one in the audience was moving towards the dais.

The mayor just made that rule up, in the moment, to curtail speech she didn’t like.

Indeed the same practice of audience members standing up at a speaker’s request to show support for their position has not been forbidden before, by Manheimer or any other mayor, in the 18 years I’ve covered city council. Causes across the political spectrum have frequently used it during meetings to show visible support.

There was more. While the meeting had run early, getting through the printed agenda in around an hour and a half, Manheimer abruptly cut the speakers’ time during public comment to two minutes, down from the usual three. The only exception was a presentation from one group that wasn’t directly criticizing city hall. As usual, she also invoked a ban on clapping that doesn’t exist even within council’s rules, where applause is only listed as one possible action that can disrupt a meeting.

By contrast, earlier that night Manheimer had been quite found of both clapping and standing up — when it favored city hall. After a presentation from a group of volunteers studying the state of city boards and commissions, the mayor thanked them and said “if you all could stand up so we could recognize you for all your work on this months and months long project.” She then led a round of applause complete with hollering from some attendees.

Not for the first time, council’s “rules” around public comment — including its vague and non-existent ones — are in practice an ever-changing barrage of thin excuses forbidding anything the mayor and her colleagues don’t want to hear. The idea they should take even the most minimal action to denounce an escalating genocide is apparently among them.

Like many cities Asheville has, over the past few months, seen a growing movement against the escalating genocide in Palestine. This has drawn in a wide array of community groups, part of a larger multi-national effort that’s taken the form of protests, direct actions, boycotts, vigils and much more.

Here it’s also included a push for council to pass a resolution supporting a ceasefire, usually by calling on them to do so during the public comment period at the end of each meeting, when speakers can talk about any issue related to local government.

This is widely seen as an incredibly basic step. Far, far more could and should be done. Indeed, plenty of local governments across the country passed ceasefire resolutions months ago. Asheville wouldn’t even be the first such city in North Carolina; Carrboro’s council endorsed a ceasefire back in mid-November.

But even that is too much for city hall’s elected officials, who have remained bizarrely silent on this issue except to chide locals for daring to bring it up. While Jan. 23 was a notable escalation, by the time of Manheimer’s made-up ban on silently standing in support of a cause this had gone on for months.

On Jan. 9 she and council reacted to ceasefire supporters by whining about how bad facing criticism made them feel.

“At our last meeting we had some speakers who essentially yelled at us, and I have heard from some council members that it can be triggering and slightly traumatizing,” Manheimer said. “It is a violation of our rules to yell at us.”

“This is a statutorily required public comment period, and we are to sit and listen to you. That is all we’re supposed to do.”

Her comments were untrue on multiple fronts. The speakers at the previous Dec. 12 meeting criticized council, sometimes harshly, for their lack of action. They spoke honestly about the human horrors of the genocide perpetrated by the Israeli regime. But, though yelling directly at council members would have certainly been justified, none of the speakers did so.

It’s also false that council members are required to never respond to public comment. In the past they’ve done so plenty, usually after all the speakers have finished. Sometimes they’ve even scheduled more meetings to address issues brought up in public comment.

We’ve covered council’s brittle attitude to criticism — including Manheimer’s downright petty use of the gavel — before. In 2021, for example, she illegally cut off the annual budget hearing because she didn’t like hearing locals condemn the police department. For years she’s claimed, falsely, that clapping’s prohibited. In practice that ban is almost always only applied to critics of city hall.

So while this isn’t entirely new, public comment’s been increasingly curtailed as council’s faced growing criticism for their silence on the genocide inflicted on Palestinians by the Israeli regime.

If all this seems off even by the miserable standards of local government, it is. The behavior of Manheimer and city council on this front is, at this point, so clearly intended to shut down a particular viewpoint that it’s running afoul of the First Amendment.

Indeed the UNC School of Government’s own guide to public comment rules emphasizes that even when facing outrage may rankle a local government “a public comment period remains open, however, for both praise and criticism of public officials and employees.”

Across the board

“If there was no reasonable basis for fearing disruption, or the purpose of the enforcement was to prevent or punish an expression or opinion, the ruling is unconstitutional”
— UNC School of Government guide to public comment policies for local governments

What follows is not to put the law on a pedestal. Honestly city hall’s actions on this issue and many others are sterling examples of how, in practice, laws are used to penalize the people and protect the powerful.

Take this, instead, as a useful “know your rights” primer. Council lies a lot, so when their actions blatantly cross even the laws they claim to follow it’s worth revealing it. Also, it can shine a light on possible ways for city hall to get deservedly sued, like the lawsuit they’re currently facing from the ACLU over their secret, draconian park bans on protesters and mutual aid workers.

So let’s take apart exactly how Manheimer and city council’s application of the rules crosses constitutional guarantees of free speech.

All of Asheville’s elected officials are complicit in this, but the mayor has, by far, the most direct power over how meetings are conducted, and she’s taken point on discouraging the push for a ceasefire resolution. So Manheimer’s targeted use of rules — fictional and otherwise — to threaten specific causes is important.

Public comment spaces are, legally, a strange hybrid. Kristina Wilson, a professor at the UNC School of Government, notes that laws and court rulings “allow local government bodies to adapt certain rules to ensure order and decorum in their public comment period.”

But, because it’s an official government space the First Amendment puts some real constraints, legally, on what those rules are and how they enforce them.

“It’s what we’d call a limited or designated public forum for First Amendment purposes,” Wilson tells the Blade. “The government can place time, place, manner restrictions. But any content restrictions would need to be reasonable and viewpoint neutral.”

That means that public meetings aren’t just a government’s personal property, to do with as they please. So a mayor creating a ban on standing up to show support for a speaker out of thin air, just in response to one speaker who criticized council, runs into some problems.

“You can’t ban people from standing based on if it’s something you do or don’t like,” Wilson says.

The mayor and other presiding officials also can’t make up a ban on behavior in the moment. Any rules about public comment, Wilson notes, have to be “passed by majority vote in an open meeting.”

“In adopting these public comment period rules, the statutes specifically reference ‘the board’ can adopt these rules. That means majority vote, not just one member.”

Council’s rules of decorum were rewritten after the 2020 uprisings — when a barrage of locals called for Manheimer’s resignation in response to the police’s brutal attacks on protesters — to give the mayor even more latitude over meetings. But those don’t override the First Amendment, and she still can’t invent rules out of whole cloth just because she doesn’t like what someone’s saying.

“There’s not a lot of power to restrict the content of people’s comments,” Wilson emphasizes. “They have to have relation to some legitimate government purpose.”

Not wanting to hear harsh criticism “would not be permissible as a reasonable, legitimate government objective.”

Importantly, officials also can’t apply broader rules only against targets of their choosing. This is where the supposed ban on clapping comes in. The current rules on it are incredibly vague, and while council could technically pass an outright ban on applause it would have to be truly, completely across the board.

“If we ban all clapping that doesn’t necessarily make me nervous,” Wilson says. “But certainly it would need to be applied in an even-handed manner. So if you say no clapping it means no clapping. It has to be enforced across the board equally.”

So that would also mean no clapping in support of city staff, volunteers they like, council members or those supporting them? “Exactly.”

“A court would look at two things, the rules on their face and it would look at how they’re applied,” Wilson adds. “Just looking at the four corners of the document they might not see anything that causes concern; banning clapping and standing wouldn’t necessarily raise any eyebrows. But if in the way that they’re applied, we can show they’re only applied against this one viewpoint, that would be constitutionally suspect.”

As for Manheimer’s assertion that city council’s silence in the face of public comment is “statutorily required,” Wilson notes that “there’s not a state law that says that.”

“They can restrict their own speech, but there’s no statute that says that.”

Indeed, from experience Asheville city council members, including Manheimer, respond to public comment all the time. While they’re not supposed to get into exchanges or outright arguments during the public comment period it’s not uncommon for members to ask city staff to look into something, express concern about an issue or even make their own comments on a wider topic after members of the public have finished speaking. Indeed over the past few years council members frequently spoke in support of the police department after locals criticized them.

Similar constraints, Wilson notes, apply when it comes to restricting people’s time to speak.

“If the point is to infringe on their time to speak not because you’re running out of time but because you don’t like what they’re saying that’s a First Amendment concern.”

The School of Government’s guide makes a similar point, concluding:

“In the end, order and decorum may be hard to define in a policy, but what may be most important is that the presiding officer applies the standard consistently to all speakers, no matter how unpleasant it is to hear what they have to say.”

‘Shame on you’

To all the above must be added that there’s nothing sacred about order and decorum. Those confronting city council on this issue are, in various ways, trying to do their part to stop daily, horrific atrocities.

Indeed, intentionally disrupting meetings has a long history as a useful tactic for movements. As does an entire slew of direct, militant actions outside the halls of government. As with any tactics, those choosing them should have the information to make a decision based on what they face.

It is telling, however, that those simply asking for a basic resolution from city council — against a literal genocide — are still treated like they’re threatening to burn down the building.

There’s no real reason behind Manheimer and council’s increasing curbs on public comment than a deep, curdled belief that no one’s ever allowed to criticize them or demand they take action.

Abdelfattah was right: they should be ashamed.

Fortunately it seems that the effort to block the push for a ceasefire resolution is failing. Tonight a wide coalition of local groups is set to go before council with a renewed demand that they take this incredibly basic action.

[Editor’s note: the Blade is an organizational signatory, alongside an array of community groups, to this call for a ceasefire resolution. We were approached by some readers who asked us to support this, and did not participate in its coordination or drafting. We signed because we believe in the basic goal of an immediate, lasting ceasefire and oppose city hall’s push to silence locals speaking up about the ongoing genocide. This is not an endorsement of the views of every group or individual who supports the measure. Indeed, we’ve criticized a few of them before on other issues. We are, ever and always, an independent co-operative.]

As for the mayor and her colleagues, they go home from those “traumatizing” council meetings to comfortable beds in expensive houses, with plenty of food and safety. There they will sleep quietly, undisturbed by bombs or the screams of the dying.

If they don’t like being reminded of that fact they can always quit. They won’t be missed.

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Blade editor David Forbes has been a journalist in Asheville for over 16 years. She writes about history, life and, of course, fighting city hall. They live in downtown, where they drink too much tea and scheme for anarchy.

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