Muzzling Public Comment at Commission Meetings

PROHIBITION AGAINST POLITICAL COMMENTS UNCONSTITUTIONAL

SIMONDS EXPOSES COUNTY TO POSSIBLE LAWSUIT

Fannin County Commission Chairman Bill Simonds has severely limited a citizen’s right to speak at Fannin County Commission meetings by prohibiting “political comments.” While Simonds may have the right to adopt reasonable rules to regulate public comments at Commission meetings, First Amendment attorneys say that it is unconstitutional for him to prohibit political comments but allow other comments.

The United States Supreme Court analyzes governmental restrictions on speech on government property by using what is called a public forum analysis. 

As explained by The First Amendment Center (Link):

There are three types of public forums:

 I. A "traditional", or "open, public forum" is a place with a long tradition of freedom of expression, such as a public park or a street corner. The government can normally impose only content-neutral time, place, and manner restrictions on speech in a public forum. Restrictions on speech in a public forum that are based on content will be struck down, unless the government can show the restriction is necessary to further a compelling governmental interest.

II. A "limited public forum" or "designated public forum" is a place with a more limited history of expressive activity, usually only for certain groups or topics. Examples of a limited public forum would include a university meeting hall or a city-owned theater. The government can limit access to certain types of speakers in a limited public forum, or limit the use of such facilities for certain subjects. Despite these more proscriptive guidelines, however, a governmental institution may still not restrict expression at a limited forum unless that restriction serves a "compelling interest."

III. A "closed public forum" is a place that, traditionally, has not been open to public expression, such as a jail or a military base. Governmental restrictions on access to a nonpublic forum will be upheld as long as they are reasonable and not based on a desire to suppress a particular viewpoint. This standard is far more defer­ential to government officials.

It is well-established First Amendment law that government can impose reason­able restrictions on the time, place and manner of free speech in a limit­ed public forum as long as the restrictions are not based on the content of the speech. As Supreme Court Justice Kennedy wrote in a 1995 opinion: “It is axio­matic that the government may not regulate speech based on its substan­tive content or the message it conveys. … Discrimination against speech because of its message is presumed to be unconstitutional.”

Simonds’ ban on political comments is clearly a content-based restriction on speech because Simonds must analyze the content of the speaker’s message in order to determine whether it is a prohibited political comment.

Simonds’ restriction impacts the very speech the First Amendment is intended to protect. The Supreme Court has held repeatedly that the major purpose of the First Amendment is to “protect the free discussion of political affairs” which includes “the manner in which government is operated or should be operated.” 

Simonds may argue that he intended something different by banning political comments. That argument will not get very far. When construing a law or governmental rule, courts look to the ordinary dictionary meaning of the words used. According to the dictionary, the word politics has several meanings: (1) activities that relate to influencing the actions and policies of a government or getting and keeping power in a government; (2) the work or job of people (such as elected officials) who are part of a government; and (3) the opinions that someone has about what should be done by governments. It certainly sounds to like all public comment about government is political.

At best, Simonds’ rule against political comments is vague. What does Simonds consider to be a political comment? If a citizen praises a commissioner, is that political? If a citizen says the commission is doing a lousy job paving the roads and will hear about it from the voters at the next election, is that political? If a citizen criticizes a commissioner for taking an action that causes the county to be sued for breaching an equipment lease, is that political? 

The law is clear that a governmental regulation or rule is void if it does not reason­ably inform a person of what conduct is being regulated. The mere fact that you have to guess what Simonds considers to be a political comment means that the prohibition is vague and therefore void. 

The vagueness doctrine exists is to prevent authorities from enacting vague rules that they can interpret however they choose. Simonds may be tempted to use the rule as a weapon to stifle healthy criticism of his or the Commission’s actions by the public.

However well-intentioned his efforts to regulate public comments at Commi­s­sion meetings, his ban against political comments is an unconsti­tutional restraint on the public’s right of free speech. Frankly, I'm surprised that our county attorney did not advise Simonds about this funda­mental principle of First Amendment law. Let us hope that she was not aware that he had imposed such a restriction.

What is even more disturbing is that Simons’ rule against political comments exposes the County to a lawsuit for damages for violation of a citizen’s civil rights. Under federal constitutional law, normally a person must have been harmed personally by the application of a statute, ordinance or rule in order to sue for damages. There is an exception, however, for suits under the First Amend­ment. It is called the overbreadth doctrine. As Wikipedia correctly sum­ar­izes, “[b]ecause an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may consti­tu­tionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others.” 

In other words, a Fannin County citizen can sue the county for violation of the First Amendment even if he or she does not attempt to make a political comment at a Commission meeting and even if Simonds never invokes the rule to stifle public comment. All it takes is one willing plaintiff and one willing attorney. There is no sovereign immunity against a federal civil rights suit, and the damages in such an action include attorney’s fees making any civil rights suit a potentially costly affair for the county.

Beyond the fact that Simonds’ rule is unconstitutional and exposes the County to liability, it is contrary to the idea of representative democracy for elected officials not to want to hear what citizens have to say about the public’s busi. To paraphrase Harry Truman, if Simons can’t stand the heat, he should stay out of the kitchen.

The prohibition against political comments by citizens at County Commission should be rescinded.