A&A: Change in public comment policy limits speech

Q: Since January, the local Board Of Education has been systematically trying and often succeeding in suppressing or censoring public comments. For more years than I can count, the Board has provided a democratic, all be it cumbersome, method of accommodating the public’s right to speak on non-agendized items. Speakers were called in the order in which their “yellow cards” were submitted to the Clerk of the Board. One hour was allotted at the beginning of the meeting with an additional time at the end of the meeting. Now the board groups requests to speak according to topic and then he/they decide which topic will be first up. Gone is the democratic process of first come first to speak. By grouping , the board controls whether controversial subjects will be addressed during the first hour or at 11pm or later and essentially eliminated the opportunity for individuals to address them on their preferred topic. Is this method, done without a formal board policy or by-law change legal?

A: I see two different issues in your question below. One is whether the proper procedures for adopting the new comment practice were followed. The other is whether the new comment practices themselves violate the Brown Act or are otherwise unlawful.

As to the first question, you might check the Board’s rules and by-laws to see whether a particular procedure should have been followed for changing the way the Board runs the public comments section of its meetings. As to your substantive question, the new procedures do implicate not only Brown Act provisions but also the First Amendment, though it is not clear whether or not the new procedures violate either.

As you may know, the Brown Act requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).

The Brown Act explicitly provides that a legislative body may “adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.” Gov’t Code section 54954.3(b). But the legislative body “shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Cal Gov Code § 54954.3(c).

In addition, First Amendment principles related to the content of speech at public meetings are relevant here. The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996). Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld. In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). The meeting should fit into this “limited public forum” category since it is governed by the Brown Act and the Act’s regulations related to public comment. See Baca, 936 F.Supp. at 728 (open session of a school board meeting is a designated, limited public forum).

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45. Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988). Regulations related to public comment must also be neutrally administered. Baca, 936 F. Supp. at 728-29.

It sounds like the Board might take the position that the new procedures are the kind of “reasonable regulation” authorized under the Brown Act to facilitate public comment in that the procedures would group comments together by content, conceivably making the process more efficient. Similarly, under the First Amendment analysis such a regulation would seem, on its face, to be content neutral.

However, you raise an interesting argument, which is that by selecting which topic will be addressed first, the Board could, as a practical matter, influence whether comments on a particular subject are likely to be heard by a significant number of audience members. To the extent the Board were administering this kind of regulation to discourage critics or diminish the effectiveness of criticism during public comment (e.g., because they are heard at the very end of the meeting when many have left and interest levels are at their lowest), such conduct might violate the First Amendment (and, conceivably, the Brown Act).

This kind of argument would be highly fact-specific and would likely require a significant amount of evidence showing that the Board engaged in a pattern of scheduling comments in a way calculated to muffle criticism. In other words, this would probably not be a situation where you could make out a violation of the First Amendment or Brown Act simply by pointing to the new procedures and their theoretical effect.

If you are interested in engaging an attorney to assist you with evaluating a potential claim, you might try the FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.

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