Recently, a federal district court denied a university's motion to dismiss a First Amendment lawsuit brought by union members. SEIU 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
