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Thursday, June 1, 2023

Federal Court Tackles First Amendment Challenge to University’s Public Comment Procedures

Recently, a federal district court denied a university's motion to dismiss a First Amendment lawsuit brought by union membersSEIU Local 73 v. Board of Trustees of the University of Illinois.

In early 2022, three SEIU Local 73 Union members (who also sat on the Union’s bargaining committee) sought prior permission to speak during the public comment period of the upcoming University Board of Trustees (Board) meeting. Each member noted on their request that they planned to address the Board regarding collective bargaining and labor relations at the University. The Board denied their request to speak based on its public comment procedures which prohibit presentations on “issues under negotiation as part of the University’s collective bargaining process.” The Union and its three members then sued the Board, claiming its policy violated its free speech rights under the First Amendment, and the University filed a motion to dismiss the lawsuit.

The district court first engaged in a "forum analysis," which is a common first step in assessing First Amendment claims brought against government bodies when they restrict speech in public places. The Union argued that the Board meeting should be considered a “designated public forum,” which means it would be a forum held open for speech during certain times with little to no restrictions on the speech. The Board argued that the meeting was a “limited public forum,” meaning it was open for speech on a selective basis and only for a distinct purpose. The district court determined that the Board meeting was a limited public forum based on the numerous rules and procedures governing public comment: members of the public are required to seek advance permission to participate, have a limited time to address the Board, and may only speak on matters which the Board has authority to address. Additionally, the Board had specific restrictions on comments addressing particular topics―including matters falling under collective bargaining negotiations. Because it was a limited public forum, the court noted that the restrictions imposed by the Board were subject to a less stringent review than under a designated public forum.

Next, the Court found that because it was a limited public forum, the Board could constitutionally impose reasonable restrictions on speech during public comment, so long as it did not discriminate against speakers based on their viewpoint. The Union argued that the Board's policy prohibiting all labor-related speech was unreasonable so their First Amendment claim should not be dismissed. The University, on the other hand, argued that its policy was reasonably drafted to avoid a violation of Illinois labor laws, which require that all collective bargaining be done with a union’s chosen exclusive representative.

On this issue, the court agreed with the Union and determined that its claim should not be dismissed. It distinguished collective bargaining procedures from comments made during a public meeting, noting that “merely listening” to unioni employees during public comment does not constitute bargaining or unlawful direct dealing. Because the meeting was held open to the public, the court determined there was minimal risk that an unauthorized "agreement" would be formed between the union members who spoke during public comment and the Board. The court also noted that the Board was not obligated to respond to the comments made during public comment, which further limited the risk of direct dealing. As a result, the court denied the University’s motion to dismiss the Union’s First Amendment claim, and the case will continue through litigation.

The Court made it clear that its opinion should be interpreted narrowly, based on the unique restrictions that the University adopted on public comment at its Board meetings. However, forum analysis applies equally to local government meetings, and readers should be aware that Free Speech rights may be implicated when public comment is restricted.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink 


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