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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, April 26, 2021

PAC Again Wades Into First Amendment Territory in Public Comment Challenge

The PAC recently received requests for review from members of the public alleging that the public body improperly imposed content-based restrictions in remote meetings to interrupt and mute public comments made by speakers criticizing named public body officials and employees. In response, the public body argued the speakers were properly muted for abusive personal attacks against named city officials and employees in violation of the public body's public comment rules.

In March 2021, the PAC issued a non-binding opinion concluding that the public body violated the section 2.06(g) of the OMA by impermissibly restricting members of the public from addressing a public body during two remote meetings. The PAC acknowledged that public bodies have the authority to conduct public meetings in an efficient and orderly manner, and may adopt reasonable time, place and manner rules to maintain order and decorum. However, the PAC cautioned that content-based restrictions must be narrowly construed, and public comments pertaining to matters of public concern are protected by the first amendment even if the speaker’s “motive in commenting...could be an insensitive, mean spirited, personal attack.” Further, the PAC highlighted that section 2.06(g) does not permit a public body to apply public comment rules that are susceptible to overbroad and arbitrary application to comments that do not actually disrupt public meetings.

After reviewing the verbatim recordings for both meetings, the PAC indicated that comments made by the speakers were delivered in a calm manner, did not contain violate or profane language, and did not create a disturbance or otherwise interfere with the efficiency of the meeting. As a result, the PAC found no evidence that it was necessary to mute either speaker to maintain decorum. Further, the PAC highlighted that the comments about the manner in which public officials and employees perform their public duties is protected by the First Amendment, so “when criticism involves conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed.” The PAC clarified that a rule prohibiting abusive comments can be applied permissibly to regulate the manner of speech in a content-neutral way. However, in this case, the PAC concluded that the public body violated the OMA by impermissibly applying its public comment rule prohibiting “abusive language” to mute and interrupt the speakers, where the PAC determined the speakers spoke in a calm manner that did not disrupt the meetings, because of the content of the comments criticizing named public officials and employees for the manner in which that employee performed their public duties.

In this non-binding opinion, the PAC once again waded into First Amendment territory, acting as a court in opining on the nature of content-based restrictions and manner of speech. As we have noted on this blog in the past, the PAC's jurisdiction and authority over the Open Meetings Act is established by state statute. We have found no provision of OMA that provides the PAC with any authority over constitutional issues. Nevertheless, the PAC has, on more than one occasion, interpreted the OMA to give it authority to issue opinions that rely, at least in  part, on its interpretation and application of the First Amendment. The PAC could have relied solely on its interpretation of the public body's rules on decorum to issue this opinion but instead chose to address the First Amendment. Since this was a non-binding opinion, there may be little the public body can do to challenge the PAC's broad interpretation of its own statutory authority.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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