First Amendment protections for public comment at government meetings

When city councils, school boards, and other governmental bodies hold public hearings, they often allocate time for public comment. During this time, members of the public may address government officials and speak on topics of public concern. Frequently, these sessions occur with little to no drama. However, when government officials retaliate against or silence speakers at public meetings based on the content of their speech, significant First Amendment implications arise. 

Since FIRE expanded its mission to include off-campus free speech advocacy in 2022, we’ve seen numerous instances of government officials silencing speakers during public comment periods. Sometimes, they eject speakers from meetings or even have them arrested. Government officials often try to justify these actions by claiming speakers made “abusive” or “demeaning” comments or launched “personal attacks” on public officials. But these justifications are often a pretext to silence or shut down speakers simply because they are critical of government officials or offer a viewpoint that officials dislike.

Consider FIRE’s successful lawsuit against the (now former) mayor of Eastpointe, Michigan, Monique Owens for silencing citizens who criticized her at city council meetings. When community activist and school board member Mary Hall-Rayford spoke out during the public comment period in favor of a council member involved in a dispute with the mayor, Mayor Owens cut her off. When others also tried to show their support, Mayor Owens shouted them down. But the mayor was happy to let other commenters praise her as “beautiful” and “wonderful.” She even ignored the advice of the city attorney, who warned her that citizens have “free rein” to voice their opinions during the public comment period. 

When public officials act out like this, they violate several fundamental First Amendment principles.

The First Amendment principles of public comment periods

Perhaps the most fundamental of all First Amendment free speech principles is that individuals have a free-speech right to criticize the government. The U.S. Supreme Court  explained this core democratic principle in New York Times Co. v. Sullivan (1964), writing of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Second, the First Amendment prohibits government officials from silencing speakers based on their point of view. This is called viewpoint discrimination in First Amendment law. When the government discriminates against viewpoints, it is distorting the marketplace of ideas and impeding free trade in ideas by allowing the expression of some ideas but not others. Sometimes, government officials camouflage viewpoint discrimination by contending they are simply protecting the public from offensive or disruptive speech. But, as the U.S. Supreme Court made clear in Matal v. Tam (2017): “Giving offense is a viewpoint.” The Court elaborated on this point two years later in Iancu v. Brunetti (2019), explaining that the judgment of whether speech is “immoral,” “scandalous,” or otherwise offensive “distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation.”

When government bodies establish public comment periods, they must adhere to fundamental First Amendment principles.

During public comment periods, government officials must tolerate viewpoints they disagree with or dislike. Such is the nature of being a public official in a robust democracy. The Court memorably wrote in the flag-burning decision Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”

Third, the government generally may not discriminate against speech based on its content or viewpoint.  The Supreme Court articulated this clearly in Chicago Police Department v. Mosley (1972), writing: “Above all else, the First Amendment means that the government may not restrict speech because of its message, its ideas, subject matter, or its content.”   In First Amendment law, government officials often cannot discriminate against speech based on content or especially viewpoint.   

Public forum doctrine and public comment periods 

The First Amendment principles of allowing citizens to criticize the government, protecting objectionable or offensive speech, and avoiding discrimination based on content are vitally important.  But, in the specific context of public comment periods, additional considerations come into play — those arising under the public forum doctrine.  

When the government opens up a section of a meeting for public comment, it creates a public forum, of which there are four types — traditional public forums, designated public forums, limited public forums, and non-public forums.  Courts consider public comment periods to be either limited public forums or designated public forums, depending on the rules the governing body applies.

WATCH: ‘You’ve got to let her speak!’ Michigan residents sue after mayor’s temper tantrum shuts down public criticism

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Eastpointe Mayor Monique Owens repeatedly tried to silence speakers at a city council meeting. See their reaction.

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Most courts consider public comment periods to be designated public forums — forums that government officials have opened up or designated for freedom of expression.  When  the government creates a designated public forum, the government cannot make viewpoint or content-based restrictions on speech unless they meet strict scrutiny, the highest form of judicial review.  In other words, when the government creates a designated public forum, that forum holds the government’s feet to the First Amendment fire just as much as in traditional public forum, which are the streets, parks and other public spaces society has immemorially held in trust for public use to assemble, communicate thoughts between citizens, and discuss public questions.  

Alternatively, some courts consider public comment periods to be a type of limited public forum, which is one the government opens for speech serving a particular purpose, such as, using a public meeting example, commentary relevant to subjects on the meeting's agenda. When the government creates a limited public forum, it can impose viewpoint-neutral content restrictions so long as they are reasonable in light of the forum’s purpose. For public comment periods, such restrictions might include limiting speakers to the subject at hand or the amount of time they have to speak. The government body also can prevent disruptive conduct, such as speaking out of turn or beyond the allocated time limit, and set a reasonable limit on the number of speakers, as long as the government is not excluding particular speakers because of their views. 

The government must apply any rules evenhandedly. For example, a local school board could limit each speaker to a total of five minutes during a public comment period but must apply such a rule without prejudice. It cannot give extra time to speakers who applaud the school board, and reduce the time for those who criticize the board.

Several courts have applied the public forum doctrine and First Amendment principles to invalidate policies that unnecessarily limit speech during public comment periods. For example, in Baca v. Moreno Valley Unified School District (C.D. Cal. 1996), a federal district court in California invalidated a school board policy that prohibited individuals during a public comment period from making “charges or complaints against any employee of the [school] District.” The court held that this content-based speech restriction could not withstand First Amendment review and impermissibly impacted the rights of speakers and those in the audience who wanted to listen to them.

The U.S. Court of Appeals for the Sixth Circuit invalidated a school board policy that restricted so-called “abusive,” “personally directed,” and “antagonistic” public comments during board meetings. The appeals court explained in Ison v. Madison Local School District Board of Education (Sixth Cir. 2021) that these restrictions “prohibit speech because it opposes, or offends, the Board or members of the public, in violation of the First Amendment.” Furthermore, the Sixth Circuit noted that a review of the video evidence showed that the speakers in question actually spoke in calm, measured tones rather than engaging in disruptive behavior as claimed by school officials.

Conclusion 

When government bodies establish public comment periods, they must adhere to fundamental First Amendment principles. They cannot shut down or silence speakers simply because they offer a disfavored viewpoint or criticize government officials. The essence of a free society is that members of the public have the ability to voice their opinions, including ones critical of government officials. 

By David L. Hudson, Jr.