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County Board Considers Regulating Metro Ads

by ARLnow.com | March 16, 2012 at 9:30 am | 4,375 views | 154 Comments

Is the Arlington County Board trying to give itself the power to remove inflammatory political ads from Metro stations? It sure sounds like that may be the case.

Two weeks after the brouhaha over an ad in the Clarendon Metro station that told President Obama to “go to hell,” the County Board went into its closed executive session with a curious objective: to discuss ”the county’s authority to regulate the content of advertising on Metro property.”

All we know about the discussion is that quote, read by County Board Chair Mary Hynes before adjourning the Board’s Tuesday afternoon meeting. The executive session is legally considered private and, reached for comment, a county spokesperson said they’ve been advised by the County Attorney to not discuss any details.

Even if the county can find the authority to regulate ads in Arlington Metro stations, though, there remains the question of whether removing political ads would be Constitutional. In explaining why it allowed the inflammatory “go to hell” ad, Metro issued the following statement: “WMATA advertising has been ruled by the courts as a public forum protected by the First Amendment of the Constitution, and we may not decline ads based on their political content.”

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  • JD

    If it had said “go to hell Bush” no one would have complained…

    • ArlingtonSouth

      +1

      No County or government agency should be deeming anything “politically inflammatory”.

      I don’t like anyone burning the flag, disrespecting the armed services, burning holy texts of any faith. But, in America, that’s protected speech.

      And as long as the Metro is a PUBLIC entity, speech is protected.

      • Clarendon

        I think I heard Bill Bennett many years ago talking about flag burning. He said something isn’t protected if it incites a riot, so his advice was next time you see a flag burning – RIOT !

      • drax

        I think we all pretty much agree with that.

        I think we should all reserve judgement on whether the board is actually considering regulations, and if so, why and what they are intended to do, before we react to this.

    • jackson

      If it had said “Go to hell George” [this ad calls Obama by his first name] while he was the sitting president, I do think people would have complained. Would it have been as many as against this ad? That’s the question (and if whether the number of people who would complain is a factor is a question as well).

      But I also agree it’s a free speech issue, questionable tactfulness and class aside.

      • JD

        I can’t see that at all. There was far worse about Bush an no one cared.

        • jackson

          So why did no one care? That’s the root of the issue.

          • B-Rad

            Explain how that is the root of the issue.

          • jackson

            I agree the board is out of control and will never succeed in controlling free speech this way (nor should they).

          • george

            If that is your assessment of the root cause, I don’t think you understand this issue at all.

          • jackson

            Please feel free to enlighten. JD said there were worse ads attacking Bush and “no one cared.” I asked why no one cared.

          • george

            Ok, I’ll answer. There is a certain segment of the population who feels the need to whine and complain about anything and everything that could possibly be construed as “offensive”. They become “offended” simply because it is possible to be so.

            The other opposing group sees an political ad they disagree with, and they shrug it off as nonsense, and they make no attempt to have it censored or reviewed, because they recognize it for what it is – free speech in a free society.

      • Josh S

        If it had been in Texas while Bush was president, some good ol boys would have taken it down.

    • Sarah

      Dixie Chicks

  • ARL

    Big Brother is watching.

  • Greg

    This is a pretty good example of why there should be one minority party representative on the Board. I can’t believe we let a small group from a single political party get behind closed doors in a secret meeting to discuss these issues.

    I just don’t understand how people think that reflexively voting Democrat leads to a better government than viewing the make-up on the Board holistically.

    And I say this as someone who thinks a majority Republican Board would be a very bad thing. But I think what we have is only slightly better in many ways.

    • South Awwwlington

      Agreed.

    • Max

      Because a lot of Democrats can’t bring themselves to vote for the party of Millionaires, homophobes, and anti-science illiterates, among other things.

      • Richard Cranium

        All generalizations are false.

        • Arlingtonian

          Including that one.

      • novasteve

        Notice how it’s so “progessive and tolerant” for you to generalize about a giant group of people, but it’s bigoted if a non liberal does it about other groups? Why is PG county so anti gay? I dont’ think there are many republicans that live there.

        • Arlingtonian

          PG county has lots of religious conservatives that vote Democratic for obvious reasions.

          • thecharlesriver

            You call these haters “religious conservatives” because they vote Democratic. Of course if they voted Republican they would be religious freaks, loons, haters etc. They aren’t conservative at all. They’re hypocritical haters who vote Democratic for obvious reasons.

      • george

        Likewise, most thinking individuals would not vote for the party of lazy beggars looking for free handouts, Christophobes, killing babies for profit, and eco-terrorism.

      • KalashniKEV

        If I listed what the Dems are about, there’s no way the mods would approve my post…

      • Scott

        Max: I’m a Repub, and I’m neither a millionaire, a homophobe, or an illiterate. In fact, I went to an Ivy League school and top 20 law school. What are your academic credentials, Mr. Literate?

        • Zoning Victim

          Great, acting pedantic will certainly help the situation.

          • KalashniKEV

            Shhhh! Max just got his resume pulled. I’m waiting to hear his credentials, because his post was so intelligent…

        • JackFan

          But you ARE full of yourself.

    • MAM

      Couldn’t agree more, which is why I now vote for the Republican candidate for County Board (something I never do in any other election). One party rule is a mistake, regardless of the ruling party.

  • http://blacknell.net/dynamic/ MB

    No no no no no.

    No.

    (And I really can’t imagine that they’d try.)

  • South Awwwlington

    Slippery Slope…

    • Celeste

      +1

  • B-Rad

    Bring it.

    • Josh S

      LOL

  • Rick

    “Arlington County Board” and “Constitution” are rarely mentioned in the same sentence. I hope they genuinely try and become the laughing stock of the area.

    • DCBuff

      Rick–they already are the laughingstock of Virginia. This would just add to the laugh track.

  • mick way

    Chill guys. They may or may not _discuss_ it. They’ve not voted on anything. Why would anyone want to trample on the free-speech rights of the Board to discuss matters even if you find them distasteful? If they vote to squelch ads then open the floodgates.

    • novasteve

      So if they discussed, just discussed, throwing homosexuals in jail, you’d be fine with that, so long as they didn’t vote on it?

      • drax

        If they discussed how terrible it would be to throw homosexuals in jail and how they would never want to do that, yeah.

        We don’t know what was said in that meeting.

    • Clarendon

      This has recently become a political tactic of taking a proposal or a discussion by someone and making it out to be a fait accompli. They do it all the time with gun stuff.

  • Becoming indifferent

    Yes Max, all Republicans fall into those three categories.

    The amount of hypocrisy in this county, and in the whole political scene in general, is appalling

  • BreakPause02

    County Board Considers Regulating Free Speech

    • John Andre

      Come on–is that right-wing crap REALLY “free speech”???

      It’s prudent not to yell “Fire!” in a crowded theater–which is what that “Go to hell, Obama.” ad really is. Frankly I wonder how WMAL radio stays in business with all that righty talk in a government town such as Washington.

      • JD

        That is EXACTLY what free speech is. The KKK is free speech. And so is those folks that protest a funerals as awful as it may be…. Yelling fire where your speech could cause a riot and physical harm s very different than saying go to hell … but then again here in Arlington that might cause a riot given the density of hard core liberals.

      • thecharlesriver

        Yes, I think I want control freaks like you deciding what “is free speech.” That would work out perfectly……LOL.

  • Elmer

    Making that business cover up the dog mural has gone to their heads. Now they want to expand their group think. Its the Arlington Way.

  • Lou

    So, they held a closed meeting specifically to discuss that one issue, or were there other agenda items?

    • Elmer

      We’ll never know as long as its all the group think, one party control of the five county board seats behind those closed doors, I mean “executive session”.
      Losing one of those seats is a threat to the machine.

      • novasteve

        Go out to vote on March 27. Vote for Kelly. I’m voting absentee for him.

        • voter

          I’m voting for you to be absent

    • Arlwhenver

      If other, unspecifiedd items were brought up in private session the Board would have been in violation of the state public meetings law. A majority of the members (three of four at this point) had to have endorsed going into a closed meeting for that very purpose. Your elected represenatives clearly have censorship on their minds. They can go to hell as far as I am concerned.

    • Zoning Victim

      It’s a secret.

  • Swag

    *facepalm*

    Lese majesty doesn’t exist in the U.S. It’s kind of the reason we created the U.S.

    You can’t prevent people from being mean to the President and you’re all idiots for even talking about it.

    • novasteve

      Yet people keep on electing idiots to the county board who talk about banning saying mean things about the president.

      • drax

        Who has talked about that though?

        There is no such public proposal and nobody knows exactly what was discussed in private yet.

        Let’s not jump to conclusions.

        • Zoning Victim

          Isn’t that pretty much what always happens when governments meet in secrecy? Remember all the fuss about the Bush energy summit?

          At the very least, we know that they are looking to see if they have the authority to regulate these ads. If they had no intent to do so, then this would be a waste of time.

  • mick way

    And chill about secret meetings. They are not secret just closed. This from the ArlCo web site:

    The only items considered in Executive Sessions, which are closed to the public, are those permitted by the Freedom of Information Act, such as legal, personnel and land matters.

    • Elmer

      Again, you’ll never know if the board adhered to the law on what can be discussed in executive sessions without a non-one party machine board member in there.

    • Suburban Not Urban

      Yea and how does this issue meet any of those criteria. The legal one is for when the county is in a legal confrontation and they are discussing the content of the conflict(IE a settlement or active case) where open discussion might give advantage to the other side. This is not intended for discussions of policy or possible rules or regulations. The smacks of spin where they don’t want to be told in public what the limits of what they can do are and have their more facist tendencies aired in public.

      • Elmer

        100% correct. This particular ex session for legal matter discussion with counsel does not on its face meet the legal test in the Virginia FOIA-much less pass the smell test.

        • Claire

          So much hubris exists on the board. The need for a non-Democrat has never been higher.

          Vote Kelly.

        • Just the Facts

          100% WRONG. The state code allows for closed sessions to get legal advice from counsel.

          § 2.2-3711. Closed meetings authorized for certain limited purposes.

          A. Public bodies may hold closed meetings only for the following purposes:

          …consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

      • drax

        Well, unfortunately, we don’t know whether the meeting fits the criteria, because the meeting was private. It’s a Catch-22. The county attorney advised them not to talk about it, so it seems there is more involved here than just some yahoo wanting to ban anti-Obama ads though. Too bad Hynes didn’t, or couldn’t, be more enlightening on the subject.

        As for not being told what their limits are, that’s absurd. They know they’d have to have public debate and vote on any measure.

        • Zoning Victim

          I got the impression that the County Attorney told them that because it would undermine their ability to have super-secret meetings in the future (or keep their content secret). If you remember, Bush used the same argument. Neither of them are wrong, but you can’t say you’re having a super-secret meeting to discuss something, tell everybody what the topic of the meeting is and then expect people not to be aggravated by it and/or suspicious of the government’s motive in making the talks secret.

    • SouthPikeGuy

      And chill about secret meetings. They are not secret just closed.

      I’ll take “What is a distinction without a difference” for $500, Alex.

      • SomeGuy

        Yep.

    • Plunkitt of Clarendon Blvd

      “They are not secret just closed”

      Did you type that with a straight face ??

      • Just the Facts

        Secret = not known about
        Closed = public not allowed

        Pretty darn distinct…and different.

  • SouthPikeGuy

    Oh, the sweet sweet irony of debating free speech issues in private.

    • Lee-n-Glebe

      Ha! Very nice!

  • Clarendon Cruiser

    I think we should take all the offensive billboards and books and burn them on Clarendon Blvd, at night. Breaking glass if we have to in order to get them. Then we should change the name Clarendon to Stalingrad.

    • JamesE

      Arlington could use a good old-fashioned book burning.

    • drax

      Stalingrad?

      Berlin would have been a better comparison with the book burnings AND the broken glass. Just sayin. Google “Kristallnacht.”

      • Clarendon Cruiser

        the coverup continues…chill ARLnow

  • JamesE

    Someone should put up a “Go to hell (insert Arlington board member name here)” ad.

    • BreakPause02
      • Ballstonian

        So if any proposed avertising has to be approved, doesnt that kind of solve the problem? It would seem to me that WMATA has at least some discretion in what ads it chooses and could simply refrain from allowing inflamatory ads.

  • Shih Tzu Sitter

    They must have read somewhere that the County can win a civic award by regulating ads. It is an add for a movie isn’t it?

  • John Fontain

    If I were to compile a list of things on which the county board should spend its time, this would be down near the bottom.

    A couple of years ago, we had two freak snowstorms. A knee-jerk response to a rare event resulted in a new, permanent regulation on snow shoveling.

    Now we have a one-off potentially offensive/disrespectful ad. Will there be another knee-jerk response?

    • OldTimer

      Train Operator: “Ladies and gentlemen, due to a new law enacted by the Arlington County Board, Orange Line trains will be by-passing the Clarendon Station due to potentially offensive advertisements. We apologize for the inconvenience.”

  • dsiders

    Legistlating against speech that is counter to your opinion is pusillanimous and should not be tolerated. As inflammatory as the sign may be this county has begun to over step its bounds when it tells people what they can and cannot say.

  • KalashniKEV

    Damn… and just when I was planning a Metro Ad of my own:

    1) ArtisFAIL
    2) Trolley Folley
    3) Bum Mansion

    Got to Hell, ACDC.

    For $800 it would be worth it!

  • Steamboat Willie

    So if the sign said F**K Off that would have been OK, as well? Where’s the line?

    • SoArl

      That would be considered obscene, and then could be regulated. Hell is not considered obscene.

      • Just the Facts

        Actually the Supreme Court’s Miller test would rule that “F**ck Off” is not obscene and, therefore, could not be regulated.

    • geezer

      when Ray’s Hell burger first opened they weren’t allowed to actually call it that – it was called “Butcher Burgers”

    • Clarendon Cruiser

      The term ‘hell’ is not profane and does not nuisance the general public. It’s in the Bible.

      The FCC makes determinations on profane language and this term does not fit into that category.

      • Steamboat Willie

        The Bible?

      • Josh S

        The word “microwave” is not in the Bible. Does that mean it *is* profane?

        • JohnE

          lolwut?

          • drax

            The Bible is now our official legal test of what’s profane or not.

      • Clarendon Cruiser

        Gentlemen,

        I am citing that Bible as a historical document only where the term ‘hell’ is used, I am not making a moral judgement with it.

        I am by no means a religious zealot.

        by the way, there are two towns in the USA that are named ‘Hell’

    • SomeGuy

      Wherever the line is on free speech, it is not Arlington County’s job to draw it.

      • thecharlesriver

        Free speech curtailment is examined by the courts under the strict scrutiny doctrine. If the government intends to abridge a given right the government must demonstrate satisfaction of three tests: a compelling government interest, a policy that is narrowly tailored to fulfill its purpose, and a policy that is the lest restrictive means possible for getting it done.

  • drax

    WAIT A MINUTE!

    WE DON’T KNOW if they Board was discussing a proposal to regulate ad content.

    It’s quite possible they were discussing whether they have the power under the Constitution to do so FIRST. Let’s not assume that anyone on the board has actually proposed doing it.

    • John Fontain

      Why would you bother discussing whether you have the power to do something if you weren’t considering doing it in the first place?

      • brif

        so they could explain the situation to constituents who wanted the ads to be regulated

      • drax

        Considering and proposing are two different things, John.

        We’re here on this board discussing it too, but that doesn’t mean we all want to do it.

        • Zoning Victim

          That’s an extremely weak argument. The people who are upset don’t feel like this is anything that any government entity in America should even consider. I don’t need a formal proposal from the County Board to be repulsed that they would even have a discussion about it because I know that they wouldn’t bother to setup a super-secret meeting to discuss their authority to do something unless they wanted to do it.

          • JohnE

            You can’t convince the willfully ignorant. It’s just a waste of your time.

          • Josh S

            “Super secret?” Closed door sessions are normal and allowed at all levels of government.

  • Suburban Not Urban

    Maybe were considering suing the metro official in charge of approving the add in both his official and personal capacity for anti-defamation.

    • Lou

      Nice!

  • novasteve

    Perhaps the board members should resign due to their planned violation of the first amendment?

    • drax

      Show us where any of them plan to do so, and then we’ll talk about it.

      WE…DON’T…KNOW…WHAT…WAS…DISCUSSED…IN…A…PRIVATE…MEETING.

    • Quoth the Raven

      How is this a 1st Amendment violation? No one is saying these folks can’t say “Go the Hell Barack” all they want. Instead, here we’re talking about metro not accepting certain ads. If they’re consistent on what they don’t accept, then they will likely avoid any 1st amendment problems.

      • Zoning Victim

        No, we’re not talking about that; we’re talking about the Arlington County Board seeking the authority to force the Metro to stop accepting certain ads. There is a big difference between that and how Metro can avoid a 1st Amendment conflict if they wish to ban certain advertisements.

    • Josh S

      Hilarious.

  • JohnE

    So Jim Moran finally shut his yap about this, but the county just can’t leave well enough alone.

    I love seeing the squirm. Powerless to regulate political speech, but always looking for a new angle to do it. In a facility funded by Federal and State government tax money not less! I guess they needed a secret session because they did not want to look stupid having the law that any 10th grader understands explained to them. Meeting should have taken about 30 seconds. “You can’t do it. Adjourned.”

  • KalashniKEV

    This is a part of the planned Sanctuary Community- You get sanctuary from the laws of the United States the board doesn’t agree with AND you get Sanctuary from having free speech!

    What a deal!

  • Steamboat Willie

    What about “Go Home Brown People”? Would that be OK?

  • Steamboat Willie

    What about “White People Unite”? Would that be OK?

  • Steamboat Willie

    What about an ad recruiting for NAMBLA, with an accompanying photograph? I’m guessing all of this feigned adoration for the First Amendment would be just as strong then as well, right?

    • JohnE

      What would the photograph be of?

      • Steamboat Willie

        Shirtless middle-aged man holding hands with or hugging a shirtless prepubescent boy. Relationship between the two indeterminate.

        • JohnE

          Is it illegal to show a picture like that in public?

          • Steamboat Willie

            Why would it be?

          • JohnE

            So you have your answer. We should still respect the First Amendment as it applies to advertising.

  • Steamboat Willie

    Don’t Have Safe Sex – It’s Not as Fun. That’s cool, too, right?

    • KalashniKEV

      I’m sure the county board would approve if it read:

      “Don’t have safe sex – Unless you can get someone else to pay for it.”

      • Bimmie Zondi

        …..and we will give you affordable housing……..

      • randomGUlawperson

        Good! Birth control is expensive for me!

        • KalashniKEV

          Pssst… Ortho Tri-Cyclen- $9/mo @ Walmart and Target.

          I’ll leave it on the dresser.

  • BoredHouseWife

    no regulation of free speech even by private entities

    • Quoth the Raven

      Every right has limits, including free speech. There is always regulation.

      • Josh S

        And this is likely the extent of the conversation. Asking the lawyers to explain where the boundary lies in this example. Perhaps throwing out hypotheticals to see if something like this happens again, would there be situations where the content could be regulated.

        This is a far less sinister conversation than many people here seem to be dreaming up. For all of you, I’d suggest switching over to CBS and watching some college basketball. It’s Friday.

        • B-Rad

          What do you mean by “something like this”?

        • dk

          +1.

        • drax

          Here’s how the typical comment goes:

          Every right has limits! You can’t yell “fire” in a crowded theatre! Therefore (insert whatever extreme ridiculous “exception” desired here, not matter how broad) is a justified regulation!

          • novasteve

            Ihate it when people bring up the “fire in a crowded theater” exception, for anything they don’t approve of, when shouting fire in a crowded theater would cause a panic and a stampede, which they would want to prevent. Offending someone isn’t the same as people getting trampled to death.

          • drax

            You are no fun when you’re absolutely right, steve. Stop being reasonable and sane.

    • Zoning Victim

      Sorry if I’m misunderstanding your post, but not allowing private entities to censor what advertisements/advertisers they choose to accept would violate the rights of the private entity. The Washington Post, Guns & Ammo, Cosmo or whomever are free to refuse any advertisements or advertisers they want; the ability for them to refuse to accept advertisements they don’t like is there to protect them and I back that, fully.

      • novasteve

        The wapo and those magazines are not state actors so the first amendment doesn’t apply against them.

    • drax

      So comments shouldn’t be moderated on this forum?

      • KalashniKEV

        Only if the don’t enhance the Liberal echo chamber that exists here…

        • Josh S

          I don’t think you’re dropping by often enough, Kev. The comments here are anything but a liberal echo chamber.

          • KalashniKEV

            I’m here often, I just get moderated out to propagate the collectivist groupthink more effectively.

  • Zoning Victim

    Yeah, if his posts get any weirder, he’s going to have to change his name to “Love boat Willie.”

  • Just the Facts

    Come on people, the issue isn’t that it’s politically disagreeable, it’s that the language is in poor taste/offensive. We all agree (the reasonable among us, anyway) that Metro wouldn’t “have” to post ads that said something really horrible like, “Anyone who supports the Affordable Care Act is a f*cking piece of cr*p who has sh*t between his ears.” That is clearly beyond the pale.

    The debate here is where to draw the line and whether or not telling a sitting President of the United States (who is, whether you agree with his policies or not, deserving of a basic level of respect), to “Go to hell” crosses that line.

    • Zoning Victim

      What’s in poor taste or offensive is completely protected by the 1st Amendment. The whole point of the 1st Amendment is to keep the government from regulating the content of speech based on its (or your) interpretation of whether or not it displays poor taste. That’s something people only seem to understand when it’s their adversary who is being attacked. This was non-threatening language that is completely acceptable to the FCC for use in anything unrated. For goodness sake, there was a tweety bird cartoon when I was a kid that had the word “damn” in it.

      Nobody, including the President of the United States of America, has a right to not be offended. It would be nice if people had enough couth not do talk about/to our President like that, but that’s not the case. Limiting peoples’ speech because the audacity of it offends some/most of the people is a huge mistake; talking about the prospect of limiting peoples’ speech by a government behind closed doors is, also.

      • Ballstonienne

        It would be awesome if Obama came across the river and told the county board to know their role and shut their mouth.

      • Just the Facts

        ZV, you miss the point. No one is saying there should be a law preventing us from saying or writing, “Go to hell, Mr. President.” The question is whether Metro HAS to accept ads that say it. It doesn’t.

        There is a big difference between not being able to purchase an ad on a subway system and passing a law prohibiting distasteful expression. This is something that reactionary anti-government folks don’t seem to understand. They see fundamental attacks on their “freedoms” behind every rock.

        Are you saying that Metro has to accept every ad someone tries to buy as long as it falls short of obscenity?!? That it has no editorial control over what goes on the walls of its stations and train cars?!? Is that really the argument you’re making?

        And, by the way, just using the word “f*ck” as an insult or expression of frustration or anger fails the Supreme Court’s Miller test and is therefore not obscene. So I guess all you 1st Amendment purists will be happily parading your children by all sorts of “f*ck this” and “f*ck that” ads in the Metro any day now. Enjoy!

      • Just the Facts

        ZV, one additional error in your analysis: Speech that is in poor taste or offensive is absolutely NOT “completely protected” by the 1st Amendment. It is illegal for me to walk up to you and, in your face, call you an a$$hole or your mother a wh0re or tell you I’m going to kick your f*cking a$$..

        VA Code § 18.2-416. Punishment for using abusive language to another.

        If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.

  • Elmer

    There are two issues here: The abstract 1st Amendment debate AND, more importantly, an apparent violation of law (the Virginia FOIA) in holding an ex session on the board’s stated subject matter in the first place.

    • Just the Facts

      Come on, Elmer, do just a BIT of research before posting. Virginia allows a number of exceptions to its open meetings laws, one of which is “consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.” VA Code § 2.2-3711, “Closed meetings authorized for certain limited purposes.”

      Even public bodies are allowed to request legal advice in confidence.

      • Suburban Not Urban

        You are ignoring the part “regarding specific legal matters” – I believe that refers to active ongoing issues that the county is a party to – Not consultation on powers and forms of regulation.

        • Just the Facts

          Asking one’s attorney whether a regulatory effort is Constitutional or not isn’t a “specific legal matter”?!?

      • Suburban Not Urban

        From the Virginia Coalition for Open Government
        http://www.opengovva.org/foi-opinions/index.php?option=com_content&view=article&id=946&Itemid=3

        The code further says subdivision A7 of § 2.2-3711

        [c]onsultation with legal counsel and briefings by staff members or consultants pertaining to ***actual or probable litigation***, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

        ** Highlights added for emphasis **

        Quoting from the article
        “Several court opinions and opinions of the Attorney General that have examined the scope of the legal matters exemption are instructive. In 1982, the Supreme Court of Virginia upheld a finding that a City Council went beyond the scope of the exemption in discussing matters the Court described as no more than a threat to litigate unless potential adversaries were willing to negotiate.6 The trial court had ruled that the legal matters exemption covered only those matters as to which the public disclosure of facts or opinions would likely damage the City’s interests and as to which confidentiality is reasonably essential to protect those interests.7 In 1992, the Attorney General opined that it was proper for a City Council to hold a closed meeting to discuss two contracts under negotiation for the purchase of water from another city.8 Following earlier opinions, the Attorney General therein opined that the “legal matters” exception applies only to discussions of specific legal transactions or disputes and may not be used to justify closed meetings involving more general issues, even though those issues eventually may have legal consequences. Under the facts involving the two contracts under negotiation, the Attorney General concluded that the substantive terms of the contracts and the negotiating strategies of the contracting jurisdictions manifestly are “legal matters” and the use of the exemption to discuss them was proper.9 In a 1986 opinion the Attorney General stated that the legal matters exemption requires more than a desire to discuss general legal matters and may not, therefore, be used as a catch-all exception to the FOI Act’s open meeting requirement and does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue.10 An opinion of the Attorney General earlier that same year observed that the legal matters exemption would not allow a local governing body to go into an executive session to discuss such general legal matters as those relating to the purpose of zoning and steps in the rezoning process.”"

        IE there must be a specific or actual legal action under discussion not just powers of the board etc.

        • Just the Facts

          This is getting tiresome even to me so I’ll make one last point and let it go.

          Your highlights above are in the wrong section.

          “consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body ***; and*** consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.”

          The actual or probable litigation clause is separated from the consultation with legal counsel clause by a semi-colon and the word “and.” That means public bodies may hold closed sessions to discuss actual or probable litigation AND to consult with counsel regarding specific legal matters. Asking the Board’s attorney whether the Board can or cannot regulate Metro ads in the County is a “specific legal matter.”

          All this fuss aside, if any of you who are so offended by the Board’s spooky, scary closed-door meeting really think it is a FOIA violation, file a lawsuit. Then we’ll get an answer once and for all.

          • Suburban Not Urban

            How bout if we just ask the VCOG for an opinion

    • Suburban Not Urban

      I agree – I just can’t imagine what discussion about whether you can or can’t regulate advertising in the Metro – could necessitate discussing behind closed door. The only thing at risk is their image or looking stupid which is not protected under the FOIA laws.

  • Elmer

    FOIA violation?
    Mr. Suburban, etc. is correct.
    Mr. Just the Facts is wrong and proven not to have done the research-which he accused me of not doing..
    No surprise there.

  • Shih Tzu Sitter

    Gee, if either was a publishable offense, they would be having all of their meetings behind barred and closed doors, for life with no possibility of parole.

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