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Wednesday, May 18, 2016

Public Body Cannot Ban Criticism at Meetings

As all public bodies in Illinois know, the Illinois Open Meetings Act requires the public body to provide some opportunity for public comment. 5 ILCS 120/2.06(g). The Attorney General says that means every meeting of a public body must include a public comment period. A public body can adopt policies for the public comment period, including imposing time limits on speakers and establishing and enforcing measures to deal with disruptive members of the public. A public body cannot, however, adopt or apply a rule that prohibits criticism of public employees, according to a federal district court ruling in Mnyofu v. Bd of Education of Rich Township H.S. Dist. (N.E. Dist., April 5, 2016).

The Rich Township School Board had adopted a public comment policy that stated as follows:

"Please refrain from mentioning the name of students and employees." 

That policy was stated verbally at each meeting, and was also written on meeting agendas. During public comment at a school board meeting, Mnyofu criticized certain individuals by name. The board president asked for the microphone to be turned off and for the security guard to stop Mnyofu from speaking. Mnyofu spoke for approximately 6 minutes before he left the meeting.

He subsequently sued, alleging that the school board's policy violated his First Amendment rights, by prohibiting speech based on its content - i.e., prohibiting criticism of school officials. The school district filed a motion to dismiss, arguing that they did not violate his First Amendment rights because any attempt to stop him from speaking was unsuccessful, and he was able to speak for almost 2 minutes longer than the policy permitted.

The court denied the school district's motion to dismiss Mnyofu's complaint, on the basis that Mnyofu had raised factual issues as to whether the school board's conduct in attempting to cut him off based on the content of his speech rose to the level of a free speech violation. The court also rejected the district's argument that the board president had immunity. Finally, the court granted Mnyofu's request for a preliminary injunction enjoining the school board from enforcing the policy restricting criticism against district employees by name. 

In granting the injunction, the court accepted Mnyofu's argument that a board meeting is a "designated public forum" and, as a result, the school board's policy was subject to a higher level of scrutiny than if the meeting were considered a "limited public forum." Other courts that have addressed this issue have found a public meeting to be a limited (not designated) public forum. For example, the 9th Circuit Court of Appeals determined that a public meeting is a limited public forum in Fitzgerald v. Orange County (9th Cir. April 17, 2014). A Vermont court held similarly in Cyr v. Addison Rutland, as did an Ohio appellate court in  Paridon v. Trumbull County Childrens Services Board, and a New Mexico court in Griffin v. Bryant (N.M. Dist. Ct. June 18, 2014).  

Whether a public meeting is a designated or limited public forum does not seem to affect the rulings coming out of these cases cases, however. The message to public bodies is to be cautious in adopting or enforcing policies that restrict public comment based on the content of the speech. Public bodies can, however, enforce rules on decorum at meetings and even remove individuals for disrupting the meeting. 

Post authored by Julie Tappendorf


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