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Tuesday, May 6, 2014

Court Upholds County Board's Public Comment Rules

Orange County, California had adopted and implemented rules for public comment at its Board of Supervisor meetings that, among other things, prohibit "personal, impertinent, slanderous or profane remarks."  After a member of the public was cut off during public comment while speaking at a Board meeting, he sued the County claiming that the County's "Speaker Guidelines" violated his First Amendment free speech rights, both on facial grounds and "as applied" to him.

The Ninth Circuit Court of Appeals ruled in favor of the County, and determined that the Speaker Guidelines were constitutional.  Fitzgerald v. Orange County (9th Cir. April 17, 2014)

First, the Court noted that public meetings of the Board of Supervisors are "limited public forums," meaning the government can only place reasonable time, place, and manner restrictions on the speech, or regulate the content of speech utilizing viewpoint-neutral rules. In this case, although the County's Speaker Guidelines could be interpreted as a violation of the First Amendment, because the County attorney had stated that the County would only limit speech in the forum when it disturbed or impeded the meeting, the Speaker Guidelines were constitutional. The Court relied on a U.S. Supreme Court case that "relied on the representations of the town's counsel as to the town's interpretation of the statute."  As a result, the Speaker Guidelines were not facially unconstitutional.  The Court also rejected the plaintiff's "as applied" challenge because he had left the speaker podium of his own accord and, therefore, suffered no injury as a result of the Board's interruption of his speech.

Post Authored by Julie Tappendorf, Ancel Glink


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