Reference Guide for Local Government Public Comment Periods: Public Comment Periods and The First Amendment

This post is Part 3 of a multi-part series. (See Part 1 here and Part 2 here). For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin # 146: Reference Guide for Local Government Public Comment Periods.

Public feedback is a vital part of governance. It allows local governments to understand the public’s concerns and perspectives, while affording the public an opportunity to impact local government decision-making. In facilitating a public comment period, local governments must comply not only with the appropriate statutory requirements but with the U.S. Constitution as well. This post analyzes the First Amendment right to speech in the public comment period context. 

The Public’s Right to Speak at Local Government Board Meetings

Before zooming in on public comment periods, it is useful to address the public’s right to speak at local government board meetings generally. Public comment period and public hearing statutes create a right to speak during those portions of local government board meetings, but there is no general statutory right to speak outside of those opportunities. Under G.S. 143-318.10(a), the public has the right to access an official meeting of a public body. The right of access includes the right to attend and the right to film, broadcast, livestream, photograph, and otherwise record public meetings. G.S. 143-318.14. The open meetings law does not, however, create a right to speak, as the court of appeals clarified in Umstead Coalition v. Raleigh-Durham Airport Authority.

There, the plaintiffs argued that the defendant airport authority violated the open meetings law by failing to provide an opportunity for public comment before approving a lease. The court rejected that argument, explaining that the open meetings law does not require the government to solicit public comment and does not empower the public to independently provide feedback at a government meeting. In short, while public comment period and public hearing statutes may create a right for the public to be heard, the open meetings law on its own does not.

Even if there is no statutory right to speak at a local government board meeting (outside of public comment periods or public hearings), is there a constitutional one? The U.S. Supreme Court has confirmed that “[t]he Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy.” Minn. State Bd. of Cmty. Colls. v. Knight, 465 U.S. 271, 283–84 (1984). However, the First Amendment right to free speech does apply at government board meetings, including during public comment periods. This right is not absolute, though. Instead, a public body may be “justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.” Steinburg v. Chesterfield Cty. Planning Comm’n, 527 F.3d 377, 385 (4th Cir. 2008). One such reasonable restriction could be confining spoken comment to a public comment period or public hearing.

The First Amendment and Public Comment Periods

Knowing that First Amendment speech protections apply during public comment periods, how can local governments exercise their statutory authority to adopt public comment period rules without running afoul of the Constitution? Whether a government’s speech regulations can survive a constitutional challenge depends on the type of forum at issue. To classify a forum, courts typically analyze the government’s own intent for the forum. Courts look at the government’s policies and practices in an area to understand what the government intended to permit or prohibit with regard to speech. Courts will also examine the nature, physical characteristics, and history of the area to determine whether it is conducive to speech. (For an extensive discussion of First Amendment forum analysis, see this bulletin).

The Fourth Circuit and the North Carolina Court of Appeals have found local government board meetings, including public comment periods, to be limited public forums. Still, it is possible for a public comment period to be a designated public forum if the local government places no initial content or subject matter restrictions and allows a very broad range of speech in policy or in practice. In designated public forums, speech regulations must satisfy a high burden to survive a constitutional challenge. In limited public forums, regulations must only be viewpoint neutral and reasonable. Viewpoint neutrality means treating all opinions and perspectives equally. Allowing a positive comment while silencing a negative perspective on the same issue is viewpoint discrimination, which is unconstitutional in any forum.

As for reasonableness, local governments do not have to act in the best or most reasonable way. Instead, they must only be able to demonstrate that their regulation or practice supports a legitimate government objective in light of the purpose of the forum. Regulations should also be consistent and “guided by objective, workable standards.” Minn. Voters Alliance v. Mansky, 585 U.S. 1, 21 (2018). Some legitimate government objectives that federal courts have recognized are the safety and efficacy of employees and the dignity and efficiency of government proceedings.

Federal courts have upheld policies prohibiting personal attacks and insults and limiting comments to agenda items in limited public forums. In contrast, on the state level, the North Carolina Court of Appeals has at least implied that limits on personal attacks, insults, and profanity may violate the First Amendment, though it has not conclusively invalidated these policies. The next installment in this series will expand on these examples and offer some practical examples and tips for adopting public comment period policies.