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Tuesday, February 13, 2018
Can governments restrict public comment rights? NOPE. (SLPC)
From Southern Poverty Law Center:
Legal Analysis: Can school boards restrict public comments?
When Dean Paterakis stepped to the microphone to comment on restroom accommodations for transgender students, he was already a familiar antagonist to the Brevard County school board.
A former third-grade teacher, Paterakis had sued the district alleging wrongful termination in retaliation for blowing the whistle on grade-tampering by an administrator. On this occasion in May 2016, though, Paterakis was before the board as an upstart candidate challenging a two-term incumbent. And he gave the board an earful.
According to news reports 1, Paterakis was told to step away from the microphone for “inappropriate” remarks and, when he refused, was removed from the meeting by sheriff’s deputies and jailed on two misdemeanor charges.
A school board member said Paterakis (who accused a teacher of showing a photo of his genitals to students during a class presentation) was in violation of a policy forbidding “talking about a teacher,” which is a “personnel matter and not allowed at Board meetings due to possible slander.” 2
Though it’s a rarity when a school board speech escalates into an arrest, it’s increasingly commonplace for districts to impose restrictions on what members of the public may say during the open-microphone portion of board meetings. But such restrictions are doubtfully legal, and in a pair of recent interpretations – one in Illinois and one in Virginia – have been found unconstitutional.
What First Amendment rights do speakers have when they address school boards and other government meetings? This article will look at the growing consensus of legal authorities that citizens may freely criticize school practices – including named employees – during public meetings.
The First Amendment and government meetings
The ability to speak directly to a government board – a city council, a school board, college trustees – is perhaps the purest and most basic form of citizen participation. It may come as a surprise, then, that the Constitution is not understood to guarantee citizens a right to be heard before their elected officials make a decision; the Supreme Court said as much in a 1984 ruling involving labor negotiations in a community college district. 3
Once an agency does agree to accept public comment, however, the commenting system cannot be operated in a discriminatory or viewpoint-restrictive way.
When a speaker seeks to use government-owned property as a platform for delivering a message, the degree of First Amendment protection depends on the nature of the property. Some property is recognized as being traditionally a “public forum” where speech can never be restricted on the basis of its message, such as a park or a sidewalk.
The Supreme Court set forth its “forum doctrine” in a case about access to mailboxes in a public school. 4 In that case, a union wanted to place recruitment flyers in teachers’ inboxes, noting that the boxes were built specifically for communicative purposes. The Court, however, found that the boxes were not a “forum” open to general expressive use, but rather, were limited by their nature to communications about official school business by authorized users. Therefore, non-school organizations had no constitutional right to insist on using the mailboxes.
The podium at a governmental meeting is considered a “designated” public forum, meaning a piece of property that has been purposefully set aside for expressive use. Regardless of whether property is a forum by tradition or by designation, the government cannot pick-and-choose among viewpoints; once the property is opened for one opinion, it must be open on equal terms to all.
However, unlike a park or a sidewalk, when the government “designates” a location as a space where citizens can express themselves, the use of the space can be limited to speech consistent with the purpose of the space. While a city or county or school board cannot differentiate based on a speaker’s opinion, speakers can be limited to subjects relevant to that agency; for instance, a person who insisted on using the school board microphone for a speech about U.S. military strategy in Afghanistan could be silenced on the grounds that the speech is unrelated to the purpose of the school board meeting.5
Content based versus content neutral
Once a piece of property is declared to be a “forum,” any regulation on the content of a speaker’s message is presumed to be unconstitutional and is likely to be struck down if it is challenged. 6 Only if a judge finds that the restriction is absolutely necessary to achieve a compelling governmental purpose will the restrictions be constitutional.
But even in a public forum, the government can always enforce reasonable regulations on the use of property that are “content neutral,” applying even-handedly to all speakers. For instance, a federal appeals court decided that a five-minute limit on speeches at a congressional hearing is a lawful, content-neutral restriction. 7 A government body also may remove a speaker who causes a disturbance – shouting, refusing to leave after the expiration of a time limit – without violating the First Amendment.8
Judges sometimes have trouble making this distinction. Regulations that clearly seem targeted to the substance of a speaker’s message are, at times, mistakenly deemed to be “content neutral.”
For example, a federal judge decided that a City of Topeka regulation prohibiting “personal, rude or slanderous remarks” at city council meetings was a constitutionally valid, content-neutral regulation. 9 But the rule should have been analyzed as content-based, since it targeted the speakers’ choice of words rather than their method of delivery.
Had the judge analyzed the rule properly, it would have been declared unconstitutional because of its excessive breadth. “Rude” and “personal” are not terms with any accepted legal definition, and any potential speaker would be unable to anticipate what speech is and is not permitted, which is a red flag of unconstitutionality. (There is no indication that the ruling was appealed, but because it comes only from a district court, the decision is not binding on other courts.)
Restraints on commenting rarely succeed
When speakers who’ve been restrained from commenting at public meetings bring constitutional challenges, they’ve generally been successful. Judges have no difficulty recognizing that a government meeting is meant for the airing of complaints, even if that requires naming or criticizing a particular employee.
A federal district court in California ordered a school board not to enforce a regulation against “charges or complaints against any employee of the District” during board meetings. 10 The plaintiff, who was silenced – and ultimately removed from the room by sheriffs’ deputies – when addressing the board about why grievances against a principal and superintendent went unaddressed, argued that the rule violated her free-speech rights. The judge agreed, in a ruling that was primarily based on the California state constitution’s strong free-speech protections rather than on federal law. The judge found that protecting employees against speech defaming them or invading their privacy was not a compelling government interest overriding the public’s right to speak. (The judge also noted that the policy was not well-tailored to its purpose; for instance, a speaker could reveal intimate personal information about an employee without violating the policy, as long as the disclosure was not a “charge” or a “complaint.”)
Another California district court struck down a school-district bylaw prohibiting “improper conduct or remarks” by public presenters. 11 The district defined “improper remarks” to mean “complaints against an individual employee.” A speaker who twice was silenced while trying to raise questions about the qualifications of the district school superintendent sued to invalidate the bylaw, and a judge found the restrictions unconstitutional: “Debate over public issues, including the qualifications and performance of public officials (such as a school superintendent), lies at the heart of the First Amendment. Central to these principles is the ability to question and challenge the fitness of the administrative leader of a school district, especially in a forum created specifically to foster discussion about a community's school system.”12
A Virginia Beach school board policy prohibiting “personal attacks” was struck down as an unconstitutional prior restraint on speech. 13 The school district attempted to defend the restriction by saying it narrowly applied only to “personal” remarks (such as “the principal is a liar”) and not to complaints about professional conduct (such as “the principal lied about spending the money”). But the judge found that the regulation still would inhibit speakers from voicing opinions about school officials, because the average person would not make such a distinction and would assume that any criticism mentioning an employee’s name was forbidden.
In a 2010 case going against the majority view, a federal appeals court refused to strike down a Texas school district’s restrictions that forbade speakers from using the microphone to air complaints about specific district employees. 14
A three-judge panel of the federal Fifth Circuit analyzed the restriction as an extension of the school district’s complaint-resolution process. Because the district had a complaint mechanism requiring grievances to first be presented to a lower-level district employee before the board would hear them, the judges regarded the restriction on speech as a legitimate method of enforcing compliance with the complaint procedure.
The ruling is a fairly narrow one, and it can be interpreted as applying only to speech that involves disputes with employees that are subject to a formal grievance procedure. That is different from saying that a board could constitutionally prohibit the mention of any names, which is a much broader restriction.
During 2016, two rulings – one in Illinois and one in Virginia – added to the growing consensus that the First Amendment protects the right to criticize the performance of school employees during board meetings.
Two regulations struck down
When the chairman of an Illinois school board shut off the microphone in the midst of a citizen activist’s speech criticizing school personnel, Komaa Mnyofu responded with a federal lawsuit. Mnyofu alleged that his speech was cut short because of his unfavorable opinion, an act of unlawful viewpoint discrimination. He challenged the board’s decision in U.S. district court as a violation of his First Amendment rights.
The district judge agreed that Mnyofu had a constitutionally protected right to use the public-comment period to criticize school employees – in fact, the judge wrote, the right is “clearly established” by decades of federal precedent. 15
In an unusual maneuver, the school district filed a “preemptive strike” lawsuit attempting to have Mnyofu banished from attending board meetings, arguing that his demeanor demonstrated a likelihood of future disruptive behavior. The judge threw out the case, finding that a government agency cannot preemptively ban a citizen from speaking at public meetings.16
In Virginia, meanwhile, the state’s attorney general issued an interpretation instructing the Franklin City School board to stop enforcing a regulation banning “personal attacks against employees” and comments that “identify specific individuals” during the public portions of meetings. 17
When evaluating a governmental restriction on speech, the first question is always whether the restriction is based on the content of the speaker’s message; if so, then the regulation is presumed to be unconstitutional unless it is show to be necessary to achieve a compelling government purpose.
Herring concluded that the rule was not based on content, because it prohibited all mentions of identifiable people (students as well as employees) and did not differentiate based on the speaker’s message. 18 Nevertheless, even a content-neutral regulation can be struck down as invalid if it is unreasonably broad or vague – and the Franklin school board’s flunked the test.
Because the school board comment period is a “designated public forum” for the expression of public views, access to the forum can be closed or limited only if the speaker has reasonable alternative channels to be heard. The school board’s lawyers argued that speakers could request to air personnel grievances in a closed-door “executive session,” but Herring noted that there is no assurance the request will be granted: “I conclude that allowing discussion of individual school employees only during closed session does not meet the constitutional standard of ‘leaving open ample channels of communication.’” 19
When a journalist questioned the validity of a Miami-Dade School Board policy that prohibits “individual grievances” and “personal attacks” during board meetings, the district’s attorney claimed the policy was necessary to prevent members of the public from defaming school employees. 20
The argument that criticism of employees must be forbidden to prevent defamation fails on two legal grounds. First, not all critical speech is defamatory. Defamation requires proof of a false statement of fact. Accurately describing wrongdoing by a school employee is a non-defamatory act of constitutionally protected speech. A restraint on referring to identifiable individuals fails the constitutional test of “overbreadth,” since it restrains far more speech than is necessary to accomplish its objective. 21
Even if it’s reasonably anticipated that some speakers will abuse the comment period to make defamatory statements, the Supreme Court has made clear that speech cannot be restrained in anticipation that it will harm someone’s reputation. 22 Rather, the proper remedy is to let the speech be heard and – if it causes harm – compensate any injured parties by way of a civil suit for money damages.
The Miami-Dade policy (which, while rare, is not unique) goes even further than prohibiting criticism of school employees and even prohibits mention of the names of individual school board members themselves (as well as any other proper name, even that of President Obama or the U.S. education secretary). While it’s arguably unfair for a speaker to be given a platform to berate a schoolteacher who’s not present at the meeting to defend herself, the school board members are present and have microphones of their own. Any policy extending beyond low-level school employees that insulates elected officials against criticism is undoubtedly unconstitutional.
As a reporter monitoring Miami-Dade school board meetings observed, policies against “mentioning” names are an invitation to abuse, since a speaker almost never will be silenced for commending an employee – indeed, reporter Rowan Moore Gerety witnessed several instances of speakers thanking people by name (including named school board members) without interruption. 23
It’s important for journalists who cover school boards – or student advocates who may find themselves speaking before school boards – to appreciate the strong First Amendment protection for citizen speech to government officials addressing matters of public concern. (Indeed, the First Amendment not only protects the freedom of speech, but also the freedom to petition government officials for the redress of grievances, and a restraint on speech to school boards jeopardizes both of these rights.)
An increasing number of school districts are buying cookie-cutter policies from vendors of uncertain reliability, who may or may not have written their policies in consultation with constitutional-law experts. When journalists discover that their school district is purchasing policies from an outside company rather than preparing them internally with the assistance of qualified legal counsel, that’s a red flag that the policies may be shoddy and collapse if challenged in court.
Like any government agency, a school district acts only through the acts of its employees. Criticizing the way a school district is delivering educational services almost always requires commenting on the performance of employees.
The law recognizes that – especially when it comes to high-ranking officials – criticism of government practices occupies a specially protected status. The burden for a “public official” (such as a school board member or superintendent) to win a defamation suit is purposefully high, recognizing the need for speakers to feel confident they can safely express dissatisfaction with government services. 24
While restrictions on criticism of school employees may be rationalized on fairness grounds – protecting the reputations of people who aren’t present to defend themselves – school districts are notoriously image-conscious and it’s likely that at least some “no-criticism” rules are motivated by aversion to controversy. But when a member of the public takes to the microphone to complain about a school’s performance, it’s almost always because lower-volume options have been tried and failed. That a citizen feels compelled to resort to the podium to air a grievance should be recognized as suggesting a weakness in the school’s dispute-resolution process.
Attorney Frank LoMonte is Executive Director of the Student Press Law Center
3 Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984).
4 Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37 (1983).
5 For example, in Jones v. Heyman, 888 F. 2d 1328 (11th Cir. 1989), a federal appeals court said a speaker could be ejected from a public meeting after he refused repeated requests from the chairman to limit his remarks to the item on the agenda and responded with belligerent remarks interpreted as threatening.
6 “Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
7 Wright v. Anthony, 733 F. 2d 575 (8th Cir. 1984).
8 Kirkland v. Luken, 536 F. Supp. 2d 857 (S.D. Ohio 2008). See also White v. City of Norwalk, 900 F. 2d 1421 (9th Cir. 1990) (upholding an ordinance that prohibited speech during council meetings that “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting.”).
9 Scroggins v. City of Topeka, 2 F. Supp. 2d 1362 (D. Kan. 1998).
10Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (C.D. Calif. 1996). <
11 Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (S.D. Calif. 1997).
12 Id. at 958.
13 Bach v. School Bd. of the City of Virginia Beach, 139 F. Supp. 2d 738 (E.D. Va. 2001).
14 Fairchild v. Liberty Independent Sch. Dist., 597 F. 3d 747 (5th Cir. 2010).
15 Mnyofu v. Bd. of Educ. of Rich Twp. High Sch. Dist., 2016 LEXIS 45773, No. 15 C 8884 (N.D. Ill. April 5, 2016).
16 Erin Gallagher, “Federal judge bars school district’s effort to limit comments,” The Daily Southtown (May 16, 2016).
18 This is probably erroneous; the proscription should have been treated as content-based because certain categories of message were deemed acceptable and certain were not, which is the definition of content discrimination.
21 See United States v. Stevens, 130 S.Ct. 1577, 1587 (2010) (restriction on speech may be struck down “if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.”) (internal quotes omitted).
22 See Near v. Minnesota, 283 U.S. 697 (1931) (striking down state statute that enabled courts to issue injunctions prohibiting the publication of defamatory speech).
23See Gerety, n. 14.
24See Gertz v. Robert Welch, Inc., 418 U.S. 323, 328 (1974) (explaining differing standards of proof for libel cases involving public officials versus private citizens).