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PUBLIC COMMENT AT BOARD MEETINGS

Steve M. Fenske

MAT General Counsel

Spring Short Courses 2024

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BRIEF HISTORY OF FREE SPEECH

ANCIENT ATHENIANS

6th Century BC?

Athenian principle of democracy

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1689 DECLARATION OF RIGHTS

English Parliament’s statement of the rights of the citizens. Right to Petition the King & Free Speech of Parliament.

US BILL OF RIGHTS

1791 – Free Speech is among the guarantees of the 1st Amendment.

EUROPEAN TRADITIONS

1500’s writings described the tradition expression

MAGNA CARTA

No free speech right, but a concept of Rule of Law.

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ALL SPEECH ISSUES SETTLED!

1st Amendment is so clear that no one disputes the meaning of free speech again.

COLONIES ADOPT

Colonies adopt statements of liberties, includes speech rights.

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FIRST AMENDMENT

INCLUDES THE RIGHTS TO …

Not speak (specifically, the right not to salute the flag).�West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

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To use certain offensive words and phrases to convey political messages. Cohen v. California, 403 U.S. 15 (1971).

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To engage in symbolic speech, (e.g., burning the flag in protest).�Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

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To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

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“Congress shall make no law...abridging freedom of speech.”

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FIRST AMENDMENT

DOES NOT INCLUDE RIGHTS TO …

To incite imminent lawless action.�Brandenburg v. Ohio, 395 U.S. 444 (1969).

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To make or distribute obscene materials.�Roth v. United States, 354 U.S. 476 (1957).

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To make or publish lies.

U.S. v Alvarez, 567 U.S. 709 (2012)

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To interrupt governmental proceedings.

U.S. v. Grace, 461 U.S. 171, 177 (1983)

  • A conclusion of implications from a various cases.

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“Congress shall make no law...abridging freedom of speech.”

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THREE CATEGORIES OF FORUMS

PUBLIC FORUM

  • Streets, parks, public square – traditional places of open speech
  • Most Protected
  • Government cannot regulate content of speech unless the regulation is needed to reach a compelling government interest and the restriction is narrowly tailored to meet the need

DESIGNATED FORUM

  • Public property opened for use by the public for expressive activity.
  • No traditional protections for speech, but government has treated the place as if it were a public forum.
  • Forum can be limited in time or use
  • Treated like a public forum

NON-PUBLIC FORUM

  • Places that are either public or private that are not traditionally used by the public for expression.
  • No right to free speech here.
  • No right to free speech just because its ‘public property’

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You are Here

Board Meetings Here

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MINNESOTA’S OPEN MEETING LAW

A TOWNSHIP IS HAVING A MEETING THAT MUST BE OPEN TO THE PUBLIC IF THERE IS: (1) A QUORUM OF THE GOVERNING BODY; (2) HAVING AN EXCHANGE OF INFORMATION; (3) ABOUT TOWNSHIP BUSINESS.

  • Applies to town board & all committees.

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  • Does not matter if a decision is made!

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  • Intended to help the public, not be convenient for townships.

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See Minn. Stat. 13D.01

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MINNESOTA’S OPEN MEETING LAW

A Quorum of the Body

Having an exchange of Information by any means

About Township Business

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MINNESOTA’S OPEN MEETING LAW

CLOSED MEETINGS

  • Attorney-Client Privilege
  • Employee Review
  • Allegation of wrongdoing

EXCEPTION

On-Site Inspections like the Road Tour or similar

NOT A RIGHT TO SPEECH

OML provides opportunity to See and Hear meetings of the governing body.

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PUBLIC COMMENT: METHODS

Free for All

  • All attendees allowed to speak on any matter
  • No Rules adopted or applied
  • Similar to an Annual Meeting
  • Opens the door to arbitrary and capricious treatment

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Pulic Comment Section

  • Board adopts rules for comment
  • Public is limited to speaking during designated time
  • Interruptions not permitted

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REASONABLE RULES

NUMBER OF COMMENTORS

Sign-up sheet at the Meeting

One spot per person

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LIMITED TIME

Set a reasonable time limit for speakers

TOWN TOPICS

Comments should relate to the township.

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NO TRANSFERRING

Cannot transfer or yield time to others

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ANYONE CAN COMMENT

No residency or taxpayer requirements.

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ADDRESS THE BOARD

Comments should be directed to the Board

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EXAMPLE LANGUAGE

No Ordinance Approach:

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The Town Board appreciates hearing from citizens about items of concern and desires to set aside time during each meeting for Open Forum. To provide ample opportunity for all, speaking time is limited to three minutes and topic discussion is limited to 15 minutes. By rule, no action may be taken on any item brought before the Council during Open Forum. The Town Board may place items discussed during Open Forum onto subsequent meeting agendas.

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SAMPLE DIRECTIONS

  • Wait to be recognized before speaking
  • Direct comments to the Town Board
  • Please no clapping or speaking out of turn
  • Please avoid personal attacks and derogatory statements
  • Comments should focus on the proposed ordinance
  • Comments should be succinct and not be repetitive of others
  • Each person is allowed to speak once unless the Town Board allows a second round of comments.

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PUBLIC COMMENT PITFALLS

CANNOT PROHIBIT CAMERAS

People may photograph or record video or audio of the meeting space.

CANNOT LIMIT TO RESIDENTS/TAXPAYERS

Open Meeting Law is not based on residency or tax-payer status.

CANNOT ACT ON CONTENT

Cannot stop speakers based on Content of the speech. Name-calling, offensive language – probably is allowed.

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PUBLIC COMMENT:�STOICISM

  • Defined: the endurance of pain or hardship without the display of feelings and without complaint.
  • Don’t React. The Moment will be over when the timer goes off. (If you adopted rules)

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A REVIEW OF THE WRECK

RECOGNIZED SPEAKER

Noah had the floor – we are in protected 1st Amendment World.

CONTENT RESTRICTION

  • Chair told Noah he was not allowed to say “fascist”.
  • Content-based restriction

INTERRUPTIONS

Chair interfered with recognized speaker’s comments

DISPARATE TREATMENT

Others were not treated this way.

Pitch deck title

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20XX

ILLEGAL ARREST

Noah was arrested for his viewpoint. Claims of “trespass” or “disruption” are covers for the content-based restriction

CIVIL RIGHTS LAWSUIT

Town was sued for violations of civil rights.

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WHAT DO YOU SEE AS CONCERNING IN THE LAST VIDEO?

Pitch deck title

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20XX

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PUBLIC COMMENT:�INTERRUPTIONS

  • Occurs when the person does not “have the floor” as the recognized speaker
  • Can be speaking, use of devices, use of items or equipment that interferes with others’ ability to observe the meeting.

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REPEATED DISRUPTIONS & INTERRUPTIONS

Leave

Get Help

Stop the speaker and advise of the Rules

Direct the person to leave the meeting and building

Call the Sheriff and have the person removed as a trespasser

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Warn

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THANK YOU