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Can the government impose a 10-minute time limit on speakers during a 'public comment' period?

Probably. A 10-minute limitation likely would qualify as a reasonable time, place and manner restriction on speech. It is a content-neutral provision that on its face does not discriminate against certain types of speech. The question would be whether the government was applying the time limitation evenhandedly. If the government imposed the limitations on speakers with whose views it disagreed, but waived the requirement for those with whom it agreed, there would be a constitutional problem. For example, the 6th U.S. Circuit Court of Appeals held in 1994 that the president of a school board was allowed to restrict the amount of time given for comments because of high attendance at a particular meeting. The court held that the school board’s policy at this meeting, which limited the public comment session to 45 minutes and each speaker to five minutes, “was a permissible content-neutral restriction on the time, manner, and place of the plaintiffs’ speech and did not violate the plaintiffs’ First Amendment rights. Where regulation of speech is content neutral, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative avenues for communication, it is constitutionally valid. … [I]n this case, the regulation affected the timing of the speech, not its content.” Hansen v. Westerville City School District Board of Education, 1994 U.S. App. LEXIS 31576.

At a public meeting, can officials limit a person’s speech because he or she has spoken at previous meetings?

No. The danger would be that the government was silencing a person because it disagreed with the content of that person’s speech. The government can violate the First Amendment by suppressing the speech of someone based on the speaker’s identity. The fear is that the government could camouflage viewpoint discrimination in such a situation.

Could officials limit each speaker to one topic per meeting?

Such a regulation would probably be OK as long as the government applied it evenhandedly. On its face, this requirement appears reasonable and does not discriminate against speech on the basis of content or viewpoint.

Could officials bar speakers from criticizing the government?

No. A federal district court in California, for instance, ruled that such content-based restrictions are unconstitutional, invalidating a school district bylaw that prohibited people at school board meetings from criticizing school district employees. During a school board meeting, the plaintiff had attempted to address the job qualifications and performance of the district superintendent. When the plaintiff mentioned the superintendent’s qualifications, the board president interrupted her and stated that the plaintiff “was moving into a personnel issue.” The president told the plaintiff that, pursuant to a bylaw, her criticisms could not be made in a public board meeting. The court reasoned that the bylaw’s prohibition on any criticism, “complaint or charge against an employee of the District” violated the plaintiff’s First Amendment rights. Leventhal v. Vista Unified School District, 973 F. Supp. 951 (S.D. Cal. 1997). Similarly, a federal district court in Virginia struck down a school board bylaw that prohibited personal attacks during public comments at meetings. Bach v. School Board of the City of Virginia Beach, 139 F.Supp. 2d 738 (E.D. Va. 2001).

Have courts addressed whether clapping at public meetings is protected by the First Amendment?

The California Supreme Court addressed this issue in 1970 in the case of In Re Kay, 1 Cal.3d 930. “Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment. For many citizens such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people.”

The court continued: “‘Disturbances’ of meetings arise in a wide variety of forms; the modern techniques of the ‘politics of peaceful confrontation’ frequently result in a clash of ideological expressions which may, in many senses, ‘disturb’ a meeting. Without doubt petitioners’ conduct in the instant case, including clapping … was ‘closely akin to “pure speech”’” (quoting Tinker v. Des Moines Independent Community School District).

Are city councils and similar public bodies required to have periods for public comment at meetings?

States take different approaches to allocating time for public comments at public meetings and courts across the country have provided some guidance on this issue. Most states do not expressly require, via statutes or legal precedent, time for public participation in public meetings, although it has become a customary practice to allow individuals to speak. Often in the case of school board meetings, members of the public are required to provide notice, or to register, with the board well before the meeting to be allowed to make a comment.

The Florida Supreme Court has recognized that public comments in open meetings are important in maintaining an open government. The court has stated that government bodies “should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doan, 224 So. 2d 693,699 (Fla. 1969). Furthermore, the Florida Code expressly provides that members of the public have a right to participate in local government meetings regarding land use, but the comment time can be regulated by the decision-making body. Fla. Stat. § 286.0115(2)(b).

California has a statute that requires public bodies to allow for public comments at meetings. Cal. Gov. Code § 54954.3(a). A California case provides legal precedent for when a public meeting is continued to a later date for some reason. In Chaffee v. San Francisco Library Commission, 115 Cal. Rptr. 3d 336 (Cal. App. 2004), a public meeting was continued to a later date after the meeting body lost its quorum to continue. A California citizen bought suit alleging that the state sunshine laws (or open-meeting laws) required public comments at every meeting of a public body, not just a comment section on each agenda. The California Court of Appeals in the 1st Appellate District held in favor of the public body by holding that public comments are mandated only once per agenda, not once per body meeting. Allowing for public comments at each meeting regarding the same meeting would cause a “surplusage,” the court said.

Some states, such as Wyoming, statutorily make it a right of a public body to prevent willful disruption of a meeting by removing anyone causing a disruption or by taking a recess. Wyo. Stat. § 16-4-406.

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