CAN ELECTED LOCAL GOVERNMENT OFFICIALS LIMIT OR BAN PUBLIC COMMENTS AT THEIR MANDATORY PUBLIC MEETINGS?
In the news recently was St. George Mayor Michele Randall’s new policy to stop allowing the public to present spoken comments at city council meetings. Balancing the public’s right to be heard with the government’s ability to do its job is a delicate task.
It begs the question, can Local government entities limit public comments at their public meetings? After reviewing Mayor Randall’s reasoning, I am not sure she will be successful with her edict. But different elected officials handle this situation differently.
A couple of years ago, the Weber County Commissioners answered that question with pizazz. According to them you see, it depends on the definition of the meeting room you are confronting the public in. This may sound silly but last year the Weber County Commission changed the definition of their meeting room in order to legally limit public comments they felt were keeping them from doing the people’s business. The change, which essentially limited public comment, was deemed constitutional and supported by our County Attorney.** How could this be possible?
Well, the room where commissioners hold their meetings has always been considered a “traditional public forum.” A place where public comments are not only tolerated but encouraged. After all, Public Servants, those elected by the people, work for us. According to the policy enacted by the Weber County Commission, that very same room is now to be considered a “limited public forum,” a designation the Supreme Court has decided is "not traditionally open for the free exercise of expressive activity." So, by changing the definition of their meeting room, the Commission can now constitutionally restrict expressive activity by enacting policies to control public comments. How’s that for responsive government?
Let us not forget our government serves at the consent of the governed, us, we the people! Our public meetings bring diverse groups of local stakeholders together for a specific purpose. They are held to engage a wide audience in information sharing and discussion. They can be used to increase awareness of an issue or proposal, and can be a starting point for, or an ongoing means of engaging, further public involvement. When done well, they help build a feeling of community because political expression is heard...out loud.
The First Amendment to the U.S. Constitution guarantees Freedom of Speech. This guarantee generally safeguards the right of individuals to express themselves without government restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner (TPM) of individual expression.
Time restrictions regulate when individuals may express themselves. At certain times of the day, the government may curtail or prohibit speech to address legitimate societal concerns, such as traffic congestion and crowd control. For example, political protesters may seek to demonstrate in densely populated cities to draw maximum attention to their cause. The First Amendment permits protesters to take such action, but not whenever they choose. The Supreme Court has held on more than one occasion that no one may "insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech" (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 ). In most instances a commuter's interest in getting to and from work outweighs an individual's right to tie up traffic through political expression.
Place restrictions regulate where individuals may express themselves. The Supreme Court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. When analyzing TPM restrictions, courts typically distinguish between these different types of forums. Here they are...
Traditional public forums are those places historically reserved for the dissemination of information and the communication of ideas. Consisting of parks, sidewalks, and streets, traditional public forums are an especially important medium for the least powerful members of society who lack access to other channels of expression, such as radio and television. Under the First Amendment, the government may not close traditional public forums but may place reasonable restrictions on their use that serve a “compelling government interest” unrelated to the expression of ideas.
Limited public forums are generally those places held out by the government for civic discussion. Capitol grounds, courthouses, state fairs, and public universities all qualified as limited public forums for First Amendment purposes. Although the government may designate such places as sites for public speech under certain circumstances, the Supreme Court has recognized that individual expression is not the sole objective served by limited public forums. For example, courthouses are primarily designed to administer justice, though important social discourse often takes place on the courthouse steps. Consequently, the First Amendment gives the government greater latitude in regulating limited public forums than traditional public forums. In the case of the County Commissioners, this greater latitude allows for them to designate public comment rules that in some minds indeed restrict fee speech...but now somewhat constitutionally.
Non-public forums include privately owned and publicly owned property devoted almost exclusively to purposes other than individual expression. Airports, jailhouses, military bases, and private residential property have all been deemed to be non-public forums under the First Amendment. In nonpublic forums the government may impose speech restrictions that are reasonably related to the forum's function, including restrictions that discriminate against particular viewpoints.
For example, in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Supreme Court ruled that a rival teachers' union could be denied access to public school mailboxes, even though the elected union representative had been given access by the educational association. This restriction was reasonable, the Court said, in light of the elected representative's responsibilities to negotiate labor agreements on behalf of the union.
Manner restrictions regulate the mode of individual expression. Not every form of expression requires use of the written or spoken word. Some of the most visceral impressions are made by Symbolic Speech. Symbolic speech can include something as complicated as an algebraic equation or as simple as the nod of a head. Under the First Amendment, symbolic expression often takes the form of political protest. Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the First Amendment’s Free Speech Clause (Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 ).
The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions on speech. To pass muster under the First Amendment, TPM restrictions must be content neutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication.
First, a restriction must be content-neutral, which means the government may not prohibit entire classes of expression, such as speech concerning poverty, drug abuse, or race relations. Second, a restriction must be viewpoint-neutral, which means that it must apply uniformly to all speech; that is, it may not silence only those speakers whom the government opposes or sanction only those whom the government supports. Third, a restriction must burden speech no more than is necessary to serve an important government interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech, such as litter, unrest, and disorder, will normally satisfy these guidelines. Fourth, all TPM restrictions must provide speakers with alternative channels for communicating ideas or disseminating information.
Unlike millionaire moguls and corporate giants, the average person on the street does not commonly communicate through the mass media. Most people do not hold press conferences, and if they did, few members of the media would attend. Instead, the great bulk of communication takes place through the circulation of leaflets, handbills, and pamphlets, which most people can distribute and read in a cheap and efficient manner. As a result, courts are generally sensitive to protecting these modes of communication, and TPM restrictions limiting their distribution usually don’t pass constitutional scrutiny.
Complete bans, as distinct from TPM regulations, are often imagined leaving potential speakers with no appropriate alternative channels in which to effectively express their ideas. Under the Court’s developing case law, restrictions on speech that are judged to amount to an absolute bar or a flat prohibition on speech are deemed to be either absolutely, or else “presumptively, invalid, at least where the restriction is thought to be based not merely on the content of the speech, but more specifically, on its viewpoint.
So, as established by the Weber County Commissioners and endorsed by the Weber County Attorney, public comments in a public forum can be restricted by simply changing the designation of your meeting room from a “traditional public forum” to a “limited public forum” without even rearranging the furniture! Perhaps Mayor Randell should pay close attention here.
While this is indeed a clever move, what our elected officials must understand is that we hold these public meetings to provide ways for us citizens to come together to express our opinions, hear a public speaker or a proposed plan, engage in shared learning about a topic, or work together to develop solutions. Regardless of the reasons why our public officials want to limit free speech, they all must understand that without our public comments and their given responses…their public meetings are nothing more than lectures…straining our constitutional rights by massively limiting the public's right to know.