When First Amendment Rights and Public Meetings Clash

MRSC has graciously given permission for us to republish this helpful article. MRSC is a private nonprofit organization, formerly known as “Municipal Resources and Service Center,” serving local governments in Washington State.  Read more of their articles here. Jurassic Parliament articles on this topic are listed below.

Most governing bodies of cities, towns, counties, and special purpose districts have an interest in assuring that meetings are conducted in an orderly way and are not disrupted by threatening, irrelevant, or overlong comment. These same governing bodies must also avoid violating the rights of citizens who wish to comment during a public meeting or hearing. What authority does that body have to establish and carry out procedures that can prevent the interruption or delay of a public meeting due to disruptive or irrelevant comments?

Legal Authority

The First Amendment of the U.S. Constitution provides protection to and opportunity for free speech in public forums. The public meeting of a board or council is considered a “limited public forum,” which means the government can regulate the time, place, and manner of speech. Boards and councils regulate speech through the adoption of rules of procedure and conduct.

When writing and establishing rules of conduct, the governing body must be careful not to violate the protections that meeting attendees enjoy under the First Amendment. The Ninth Circuit Court of Appeals addressed this issue in Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013), indicating where the line may lie between council rules that are enforceable and those that violate constitutional rights. In that case, the court held that the First Amendment requires a person’s speech in a city council meeting must actually disrupt a meeting before that person may be removed from the meeting. The case provides an example of language a council may adopt for such a proposed rule. The court looked approvingly on rules that stated:

It shall be unlawful for any person in the audience at a council meeting to do any of the following … (1) Engage in disorderly, disruptive, disturbing, delaying or boisterous conduct, such as, but not limited to, handclapping, stomping of feet, whistling, making noise, use of profane language or obscene gestures, yelling or similar demonstrations, which conduct substantially interrupts, delays, or disturbs the peace and good order of the proceedings of the council. Id., at 816.

The Acosta court also approved prohibitions on disorderly conduct when it arises from a member of the governing body. “Members of the council shall not, by disorderly, insolent, or disturbing action, speech, or otherwise, substantially delay, interrupt or disturb the proceedings of the council.” Id.

Another case, Steinburg v. Chesterfield County Planning Comm’n, 527 F.3d 377 (4th Cir. 2008), concerns an action brought by a private citizen, Robert Steinburg, against the Planning Commission of Chesterfield County, Virginia. Steinburg attended a meeting of the Chesterfield County Planning Commission but was escorted out of the meeting when he refused to limit his comments to the matter at hand and engaged in personal attacks in violation of adopted procedures (See our 2008 blog post Balancing the Council’s Right to Manage Meetings With Expectations of Citizens for a more detailed discussion of the case).

Steinburg claimed that the Chesterfield County Planning Commission had violated his First Amendment right to free speech. But the Steinburg court pointed out that the Planning Commission meeting was a “limited public forum” that could be managed by the government entity.

The Steinburg court explained that argumentative or disruptive behavior cannot be shielded by a claim of First Amendment rights, stating:

Officials presiding over such meetings must have discretion . . . to cut off speech which they reasonably perceive to be, or imminently to threaten, a disruption of the orderly and fair progress of the discussion, whether by virtue of its irrelevance, its duration, or its very tone and manner.

Rules of Procedure

Many city councils and county councils/boards of commissioners in Washington have adopted formal rules of procedure to govern the conduct of their meetings. In fact, city councils are authorized by statute to develop such procedures. See RCW 35A.12.120 for non-charter code cities; RCW 35.23.270 for second-class cities; and RCW 35.27.280 for towns. Councils in first-class cities are authorized to adopt rules of procedure by their city charters.

While county councils/commissions do not have a similar statute, that authority is necessarily implied from the council’s/board’s authority (and requirement) to hold meetings and conduct business.

MRSC offers sample rules of procedures from cities and counties on our Council/Board of Commissioners Rules of Procedure webpage, and a few samples from port districts (such as the Port of Olympia) in our Sample Document Library.

What About Virtual Meetings?

When members of the public are allowed to participate in remote public meetings the same rules of decorum that would apply to an in-person meeting should be applied to its remote counterpart. In ruling on whether a provision of the disorderly conduct statute (RCW 9A.84.030(1)(b)), is unconstitutionally overbroad and infringes on protected speech, the court in State v. Patterson, 196 Wn. App 451, 460, 389 P.3d 612, 616 (2016) noted: “A person generally has a free speech right to make his or her views known, but the rubric of free speech does not include the intent to substantially interfere with a meeting.”

The meeting chair should explain to the public the rules for participation in the remote meeting and warn that anyone who disrupts the meeting will be disconnected. The chair may also have to disconnect those that are inadvertently disrupting the meeting, such as due to sound feedback or too much background noise.

Actions That Can be Taken

Governing bodies can establish rules that regulate public comment but these must be reasonable restrictions on time, place, and manner that are viewpoint neutral. Additionally, when enforcing the rules of decorum, an actual disruption of the business of the governing body is necessary prior to removing or disconnecting the speaker. RCW 42.30.050 allows the majority of the members of a governing body to clear the room and adjourn/reconvene a public meeting if the meeting is interrupted by a group of persons so as to render the orderly conduct of such meeting unfeasible. If a person merely uses profanity or states lies without actually disrupting the meeting, than this behavior is not sufficient enough to justify ordering the individual to leave the meeting or clearing the meeting entirely.

If the meeting room has to be cleared, council members may readmit an individual or individuals not responsible for the disruption. And, representatives of the news media, except those participating in a disturbance, are required to be readmitted to such meetings.

Conclusion and Resources

When the conduct of attendees at public meetings is disruptive, a governing body may take steps to assure that the public’s work is carried out without fear of infringing on the First Amendment rights of citizens. Below are some additional resources to consult.

Here are sample ordinances and codes addressing rules of conduct for public meetings:

• Town of Yacolt, Ordinance 483 — Describes general rules of decorum to be observed during any meeting of the town council.
• Downey (CA) Municipal Code Ch. 1, Sec 2105 — Lists the rules of conduct for council meetings, specifically those related to meeting protocol and behavioral conduct.
• Cochecton (NY) Rules of Conduct for Public Meetings — Provides a list of 16 rules of conduct that apply to town board meetings, special meetings, and public hearings.

Here are MRSC webpages that touch upon meeting rules of procedure or decorum:

• Public Participation in Council/Commission Meetings,
• Council/Board of Commissioners Rules of Procedure, and
• Hearing Examiners.

Jurassic Parliament related articles include:

• Guidelines for Public Comment in Local Government
• Danger Will Robinson! Public comment ahead!
• Don’t get into back-and-forth exchanges during public comment
• Don’t include detailed public comment in meeting minutes