GOL Asks: In What Ways Can Public Comment Be Limited? Whose Flags May Be Flown On Town Common?

Report On The Meeting Of The Governance, Organization, And Legislation Committee, April 12, 2023

The meeting was held over Zoom and was recorded.

Present
Pat DeAngelis (Chair, District 2), Michele Miller (District 1), Lynn Griesemer (District 2), Jennifer Taub (District 3), Mandi Jo Hanneke (at large). Griesemer left the meeting at 10:18 a.m.

Also: Lauren Goldberg, Town Counsel, KP Law, Athena O’Keefe, Clerk of Council. Paul Bockelman, Town Manager, joined about 10:30 a.m.

The number of members of the public present was not announced.

Constraints On Public Comment
The bulk of the meeting was devoted to asking Town Counsel Lauren Goldberg of KP Law about the ability of a governing body to impose constraints on public comment. The questions arose in response to the Massachusetts Supreme Judicial Court’s decision in the case Barron v. Kolenda (also referred to as the Southboro decision). The court found that a Southboro resident, Louise Barron, who insulted members of the selectboard at a 2018 meeting, had a right to express her sentiments and that the board had acted inappropriately in curtailing her freedom of speech (see also here, here, and here). According to WBUR, Barron had accused board members of violating the state’s Open Meeting Law (OML), and spending town funds “like drunken sailors”. 

That case was about constraints on the content of speech and what kind of speech is protected, with the justices ruling that “…civility restraints on the content of speech at a public comment session in a public meeting are forbidden.” The upshot of the decision is that government bodies may not constrain speech during public comment based on the content of the speech.

Ruth Bourquin, senior attorney at the American Civil Liberties Union of Massachusetts, called the decision a win for free speech. She said the core issue in the case of Barron v. Kolenda is government officials “setting rules that allow them to silence speech that makes them uncomfortable or that they disagree with because it’s critical of them.”

Northampton Attorney Bill Newman, in an opinion piece in the Daily Hampshire Gazette, concurred, writing, ”because the case is decided on state, and not federal, constitutional grounds, the United States Supreme Court can’t futz with the holding of Barron. And any attempt to constrain public comment periods at this time likely would violate the state constitution.”

Newman continued, “The public officials with whom I’ve spoken about this decision all have presided over public meetings; all have been on the receiving end of sharp and unpleasant criticism; and all support the SJC decision. That’s gratifying, albeit not surprising. Those officials appreciate that democracy by its nature often is disputatious and not decorous.

“There have been difficult public meetings in the past, and there will be difficult public meetings in the future. The Barron decision doesn’t change that. It does protect our most valuable and fundamental rights. It is a decision to celebrate.”

— Attorney William Newman, writing in the Daily Hampshire Gazette

“There have been difficult public meetings in the past, and there will be difficult public meetings in the future. The Barron decision doesn’t change that. It does protect our most valuable and fundamental rights. It is a decision to celebrate.”

The Discussion
Town Councilors posed a variety of questions to Goldberg, almost all centered on whether they can set rules that define what can and cannot take place during public comment. Goldberg responded to several variations on this question with the same answer, that the council may set rules that govern the time, place, and manner (e.g., the duration) of public comment periods but they may not impose any rules based on the content of speech. In addition, any actions that would suggest that certain content is being favored, for example, allowing a speaker to exceed a set time limit, could be interpreted as favoring certain speech, and risk being judged as discriminatory. 

“The committee is allowed to set rules that let it do its work, but the rules must not be content based.”  

— Attorney Lauren Goldberg, KP Law

Goldberg emphasized that her firm had given considerable thought to how this ruling impacts the conduct of government in municipalities around the Commonwealth. She said, “We don’t think that the exercise of some authority by the chair of a meeting is in conflict with Southboro. There are opportunities for regulating discourse, but that regulation cannot be content-based. But there is a difference between orderly conduct and disruptive conduct. For example, it would be acceptable to shut down someone screaming in a meeting because that is disruptive. Some of the guardrails that we have used in the past to manage an orderly meeting have moved. New guardrails must now be content neutral.” She explained to the councilors that  “limiting discussion to three minutes for everyone is content neutral. Liming the totality of public comment to 30 minutes is content neutral. Saying when people can speak and how long they can speak is content neutral. But chairs need to be mindful of not attempting to regulate content.” 

Pat DeAngelis asked “how do we define peaceable conduct?”

Goldberg responded that this is one of the issues that is unsettled. She said, certainly making threats or acting in a manner to lead a reasonable person to be concerned about their safety is not peaceable and would be regarded by most as unacceptable. But being unpleasant or unreasonable is not enough to be defined as not peaceable.

Mandi Jo Hanneke asked about giving preference for speaking time to Amherst residents. “Can we cut someone off if we learn that they aren’t a resident?” and pointed out that in  Zoom meetings, “we don’t learn of a person’s address until after they’ve been recognized. Once we learn that they aren’t a resident, can we deny them the right to speak? And can we still regulate decorum for participants in meetings outside of the public comment period? Or can we not regulate civility at all?”

“[If] you want to run an efficient meeting…you need to be aware that layering on more criteria to regulate participation complicates that.”

— Attorney Lauren Goldberg, KP Law

Goldberg responded that “…it’s permissible to say that we’re going to allow residents to speak first. But you want to run an efficient meeting and you need to be aware that layering on more criteria to regulate participation complicates that.” She added, “To the extent that we’re talking about rules that apply to everyone for example, that we won’t talk over another speaker, or we will wait until we’re called upon to speak — these kinds of things are permissible. But these rules can’t be applied based on speech content nor can they be applied differentially.”

“I don’t think we know enough yet that you should rush to change your rules on decorum and endeavor to define peaceable and other things like that,” she told DeAngelis. “[The Southboro] ruling really hasn’t changed much….  It’s just that the notion of decorum has now been linked more clearly to content. The committee is allowed to set rules that let it do its work, but those rules must not be content based. And rules should be clear and applied in a uniform manner.” She also cautioned the councilors not to “go back-and-forth during public comment. “It’s advisable to avoid responding because [your responses] are likely to drag you into a content-based exchange.”

Lynn Griesemer asked for clarification of a number of points concerning OML and public comment, prefacing her remarks by saying that she is looking for  clarification, not trying to make a case for limiting public comment. She asked Goldberg to confirm  that:

• OML does not require public comment. 
• There is nothing in the OML that sets time limits on public comment.
• There is no restriction in the OML on how many times people can speak.

Goldberg confirmed the accuracy of the statements. However,  Athena O’Keefe reminded the committee that while OML does not require allowing public comment, Amherst’s Town Charter does. Griesemer then added that while the charter does require public comment at regular town council meetings it does not require it at special town council meetings.  [Editor’s note: Amherst’s town council has made a practice of not allowing public comment at special council meetings but the charter does not forbid it]. O’Keefe added that, according to the Town Charter, a person’s comments are limited to one per comment period.

Griesemer said that chairs can open public comment periods by encouraging civil discourse or reminding participants that members of government are volunteering their service. For example, in Northampton, City Council President Jim Nash starts each public comment period with words written by Northampton Mayor Gina-Lousie Sciarra when she was the City Council president: ‘Your protected speech is a constitutional right and one that we ask you to wield with consideration and respect for all, and to do so with the recognition that the public space that grants you that freedom is shared equally by everyone” (see here).  Griesemer said that she would like to look into adopting such a preface.  

Grisemer asked if councilors can respond to an insult or unpleasant comment directed at the council.

Goldberg repeated that it is best not to respond or comment. 

Hanneke asked, “Can we stop public comment before everyone who wants to speak has spoken?“ She also wanted to know whether this would have to be written into the regulations.

Goldberg explained to her that determining  length of the public comment period on a meeting-by-meeting basis is “precarious”. She advised that it is better to have a rule in place so that the council is insulated from a civil rights challenge. For example, she explained, it is permissible  to do something like limit public comment at most regular council meetings, but to also have sessions where more public comment is allowed, such as monthly meetings with more public comment. In this way the council could balance its interest in hearing from the public and its “need to get things done”. Goldberg cautioned that if the council does decide to limit public comment at council meetings that they make sure they create other opportunities to access the council.

Jennifer Taub pointed out that during COVID, when all meetings were on Zoom, Griesemer had a cut-off point for public comment where she asked for all those who wanted to speak to indicate their desire to do so and she recorded those names and then closed the queue to additional speakers. She wondered whether such an approach would facilitate the acceptable balance of hearing from the public while enabling the council to move on to other business. 

Goldberg cautioned against this, pointing out the judgment that public comment has gone on long enough and that we have to wrap things up is subjective and hence problematic. “If you have just one set of rules it’s easier to follow. Even if you have a council vote to allow public comment to continue, it seems like that opens the door to a challenge that the extension was based on whether the council liked or disliked what they were hearing.”

O’Keefe pointed out that committees currently limit comment to issues under their jurisdiction/authority. Goldberg responded that the ACLU has said this is allowable. “The challenge is to not make exceptions to that. If you allow one speaker to speak outside of the committee’s jurisdiction then you have opened the door for anyone to speak about anything. You can say, ‘We’re going to limit comments to the business on the agenda at this meeting’.” 

O’Keefe asked whether the constraints being discussed apply to written public comments as well. For example, could the town redact a racist public comment attacking a councilor?

Goldberg responded, “In Southboro the court did not find calling a councilor a Nazi to be hate speech. It’s more than likely that if you’re accepting written public comment that you have to accept most everything. You can post a disclaimer saying, ‘We don’t endorse anything said here’ and ‘We do not have the authority to judge or regulate based on content.”

Griesemer asked whether any content in a published public comment must be redacted (e.g., a child’s name, a person’s phone number, a person’s health issue). 

Goldberg responded that one way to deal with this is to say that “we publish what we receive” or “we reserve the right to make redactions to protect minors, vulnerable people, etc.” “But every time we put in a caveat it makes it harder to enforce the rule in a non-content based way,” she said.

DeAngelis asked whether the council is limited by precedents it has already established. Goldberg responded that government is allowed to adapt and respond to new circumstances and that, especially in the face of new court decisions, it makes sense to revisit policies and practices, and think about what other communities are doing, and amend policies accordingly.

Flag Raising Policy
The town has drafted a new policy for when a flag will be granted a town-sponsored flag-raising ceremony and which flags may be flown on the flag poles on the Town Common and at Town Hall. The new policy was drafted out of concern that the town had no provision for denying a request to fly a flag, even if it is offensive to some people. The policy was drafted by the Director of Diversity Equity and Inclusion in consultation with KP Law and can be found here. 

DeAngelis asked a question that underscored the motivation for drafting the new policy: “Can the public make us fly a flag that we don’t want to fly?”

Goldberg responded that this is currently an area of uncertainty. The draft policy adopts what KP Law has determined to be a combination of best practices, noting that if you allow your flagpole to be used by anyone who asks, you run into difficulties if you refuse someone. The draft policy, she noted, distinguishes between government speech and free speech, and reserves the Town Hall and Town Common flagpoles for the expression of government speech. As a result, the government is not required to put out the banner of a group that does not represent the views endorsed by the town. 

The council has a legislative role to properly represent those views. One approach is to limit requests to town councilors. The council can then take up the request through the lens of whether it represents the views of the town government. 

Goldberg also suggested that the town consider developing an explicit policy for banners flown on light poles. This, too, could be regarded as government speech (vs. free speech), requiring the permission of the government, but she said it becomes “dicey” if there is no explicit policy in place.

Hanneke asked whether a new policy could be put in place  to limit the public’s right to petition. Currently, the council must consider a petition signed by 100 or more verified residents. 

Goldberg did not offer an explicit answer but seemed to hint that this could be precarious. She said, “The petition process gets something in front of the council, and then it is up to the council to decide how they want to proceed. Acting on a petition can take different forms, including taking no action or a sponsor offering a specific motion/action”.

Hanneke asked about a banner that currently runs across South Pleasant Street, and whether that should be included in the policy. The authority to manage this banner currently rests with the Town Manager and the Chamber of Commerce, but apparently  they only consider when the reservation is made and do not look at content. And while the banner across South Pleasant Street has mostly been used to announce upcoming events in town, on occasion there have been banners with political content.

Goldberg said that it is important that a policy categorizes allowable or not allowable uses, such as  whether it can announce events, policies, political stances. The policy should address how it is to be used and what the rules are.