freedom of speech" during a Brevard County School Board meeting " width="515" height="386" /> freedom of speech" during a Brevard County School Board meeting " width="515" height="386" />
When city councils, school boards, and other governmental bodies hold public hearings, they often allocate time for public comment. During this time, members of the public may address government officials and speak on topics of public concern. Frequently, these sessions occur with little to no drama. However, when government officials retaliate against or silence speakers at public meetings based on the content of their speech, significant First Amendment implications arise.
Since FIRE expanded its mission to include off-campus free speech advocacy in 2022, we’ve seen numerous instances of government officials silencing speakers during public comment periods. Sometimes, they eject speakers from meetings or even have them arrested. Government officials often try to justify these actions by claiming speakers made “abusive” or “demeaning” comments or launched “personal attacks” on public officials. But these justifications are often a pretext to silence or shut down speakers simply because they are critical of government officials or offer a viewpoint that officials dislike.
Consider FIRE’s successful lawsuit against the (now former) mayor of Eastpointe, Michigan, Monique Owens for silencing citizens who criticized her at city council meetings. When community activist and school board member Mary Hall-Rayford spoke out during the public comment period in favor of a council member involved in a dispute with the mayor, Mayor Owens cut her off. When others also tried to show their support, Mayor Owens shouted them down. But the mayor was happy to let other commenters praise her as “beautiful” and “wonderful.” She even ignored the advice of the city attorney, who warned her that citizens have “free rein” to voice their opinions during the public comment period.
When public officials act out like this, they violate several fundamental First Amendment principles.
Perhaps the most fundamental of all First Amendment free speech principles is that individuals have a free-speech right to criticize the government. The U.S. Supreme Court explained this core democratic principle in New York Times Co. v. Sullivan (1964), writing of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Second, the First Amendment prohibits government officials from silencing speakers based on their point of view. This is called viewpoint discrimination in First Amendment law. When the government discriminates against viewpoints, it is distorting the marketplace of ideas and impeding free trade in ideas by allowing the expression of some ideas but not others. Sometimes, government officials camouflage viewpoint discrimination by contending they are simply protecting the public from offensive or disruptive speech. But, as the U.S. Supreme Court made clear in Matal v. Tam (2017): “Giving offense is a viewpoint.” The Court elaborated on this point two years later in Iancu v. Brunetti (2019), explaining that the judgment of whether speech is “immoral,” “scandalous,” or otherwise offensive “distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation.”
When government bodies establish public comment periods, they must adhere to fundamental First Amendment principles.
During public comment periods, government officials must tolerate viewpoints they disagree with or dislike. Such is the nature of being a public official in a robust democracy. The Court memorably wrote in the flag-burning decision Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”
Third, the government generally may not discriminate against speech based on its content or viewpoint. The Supreme Court articulated this clearly in Chicago Police Department v. Mosley (1972), writing: “Above all else, the First Amendment means that the government may not restrict speech because of its message, its ideas, subject matter, or its content.” In First Amendment law, government officials often cannot discriminate against speech based on content or especially viewpoint.
The First Amendment principles of allowing citizens to criticize the government, protecting objectionable or offensive speech, and avoiding discrimination based on content are vitally important. But, in the specific context of public comment periods, additional considerations come into play — those arising under the public forum doctrine.
When the government opens up a section of a meeting for public comment, it creates a public forum, of which there are four types — traditional public forums, designated public forums, limited public forums, and non-public forums. Courts consider public comment periods to be either limited public forums or designated public forums, depending on the rules the governing body applies.
