Reference Guide for Local Government Public Comment Periods: Common Policies

This post is Part 4 of a multi-part series. (See Part 1 here, Part 2 here, and Part 3 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 evaluates some common public comment period policies with an eye toward statutory compliance and compliance with the First Amendment.

Review from Parts 2 and 3

Public comment period rules must be reasonable and relate to the conduct of public comment period under the relevant governing statutes. G.S. 160A-81.1; 153A-52.1; 115C-51. The statutes give some illustrative—though not exhaustive—examples of permissible rules, including time limits, rules about spokespeople and delegates, and rules about order and decorum. While rules that fall within these categories are clearly statutorily authorized, rules falling outside of these categories are more difficult to evaluate. North Carolina courts have not defined reasonableness in this context or described when a rule relates to the conduct of a public comment period. For that reason, statutory authority for rules that fall outside the illustrative categories is an unsettled issue.

Compliance with the First Amendment depends on the type of forum at issue. Generally, the U.S. Court of Appeals for the Fourth Circuit has treated local government board meetings, including public comment periods, as limited public forums. In limited public forums, rules must be both reasonable and viewpoint neutral to survive a constitutional challenge.

The policies in the below sections present “open questions.” When a policy presents an “open question,” that does not mean that the policy is illegal. Rather, it means that there is little or no relevant case law, and therefore, no conclusive way to assess the policy.

Restrictions on Personal Attacks and Insults

Statutorily Authorized? Probably. There is no case law on this question, but a strong argument can be made that limits on personal attacks and insults are statutorily authorized as providing for the maintenance of decorum.

Constitutional? Arguably, yes, but it is an open question. The Fourth Circuit has repeatedly upheld prohibitions on personal attacks and insults during public comment periods against First Amendment challenges. In Steinburg v. Chesterfield County Planning Commission, the court noted that bans on personal attacks serve the legitimate government interest of maintaining order and decorum since personal attacks can lead to arguments that detract from the efficiency and professionalism of a meeting.

Fourth Circuit precedent is not binding on North Carolina courts with respect to federal constitutional questions, however, and the North Carolina Court of Appeals appeared to depart from the Fourth Circuit’s jurisprudence on this topic in State v. Barthel. There, the court stated that the government “cannot ban offensive words or criticism of public officials under the guise of maintaining order.” 924 S.E.2d 74, 90 (N.C. Ct. App. 2025). Moreover, the court concluded, restricting critical views about public officials expressed through personal insults constituted viewpoint discrimination.

Does Barthel then invalidate all policies prohibiting personal attacks or profanity? Not exactly. Barthel did not evaluate a public comment policy; rather, it analyzed the constitutionality of a criminal conviction for disrupting a public meeting under G.S. 143-318.17. Barthel does signal that such policies should be drafted and applied cautiously. It may be helpful for a policy prohibiting personal attacks and insults to articulate the specific governmental interest its serves and its relationship to the purpose of public comment periods, in addition to the general promotion of order and decorum.

Restrictions on Profanity

Statutorily Authorized? Probably. There is no case law on this question, but limits on profanity probably relate to decorum.

Constitutional? Open question. Case law on the precise question of restricting profanity during public comment periods is sparse. The First Amendment generally protects profanity, with some exceptions. The U.S. Supreme Court established this principle in Cohen v. California. There, the defendant was convicted of disturbing the peace after wearing a jacket emblazoned with “F*** the Draft.” The Supreme Court reversed the appellate court, which had upheld Cohen’s conviction. In so doing, the court held that Cohen’s profanity was protected speech and that “the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.” 403 U.S. 15, 26 (1971). It further remarked that “one man’s vulgarity is another’s lyric” and reflected that government officials are not in an appropriate position to “make principled distinctions in this area.” Id. at 25.

In Cohen’s aftermath, both federal and state appellate courts have reversed criminal convictions premised on profanity, including in State v. Barthel. There, the defendant was convicted of disrupting an official meeting in part based on his “offensive words” which could be interpreted to include profanity. 924 S.E.2d at 90. The court did not believe that concerns for order and decorum were compelling enough to uphold the conviction. However, the question of whether profanity can support a criminal conviction is different from whether a government’s restriction of profanity at a public meeting can survive a constitutional challenge, and there is little relevant case law on that latter question.

Where does that leave local governments that currently have policies prohibiting profanity? A strict interpretation of the Barthel case may compel agencies to view limits on profanity as constitutionally suspect. On the other hand, as noted previously, Barthel did not deal with public comment period policies. Local governments may be able to defend policy limits on profanity as reasonable due to the distinct setting of local government meetings. (For more on that, please see the bulletin).  

Limiting Comments to Agenda Items

Statutorily authorized? Open question. This policy does not clearly fall within any of the statutory categories of permissible public comment period rules. Such a policy is not a time limit and does not relate to spokespeople or delegates. Could it provide for the maintenance of order and decorum? Perhaps, but one would have to argue that unrelated comments inherently detract from either order or decorum in some way, and that argument seems difficult. As a result, jurisdictions with this rule will need to show that the rule is reasonable and relates to the conduct of the public comment period. Relating that rule to the conduct of public comment period seems straightforward, but reasonableness is more ambiguous Without case law on reasonableness in this context, it is just very difficult to know how courts would treat this policy. 

Constitutional? Probably, but it is an open question. No state appellate court cases have considered this type of public comment period policy provision, but the Fourth Circuit in both Steinburg and Davison v. Rose approved policies limiting comments to agenda items. Even though the Fourth Circuit is not binding on state courts with respect to constitutional questions, it is persuasive authority, so there is a cognizable argument in support of a policy limiting public comments to agenda items.  

Restricting Board Members from Responding

Statutorily authorized? Arguably, yes, but it is an open question. As with rules limiting comments to agenda items, this rule does not very clearly fall within any of the statutory categories. However, a good argument can be made that this rule provides for the maintenance of order and decorum. Allowing board members to respond during public comment could lead to back-and-forth arguments that detract from the dignity and professionalism of the proceeding, as well as from meeting efficiency.  

Constitutional? Arguably, yes, but it is an open question. No North Carolina or Fourth Circuit cases have dealt specifically with policies limiting board members from responding during a public comment period. However, as a general matter, the Supreme Court has stated that the First Amendment does not “require government policymakers to listen or respond to individuals’ communications on public issues.” Minn. State Bd. of Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984) (emphasis added). Additionally, Fourth Circuit case law likely supports the reasonableness of such a policy. Recall that Steinburg and Davison upheld limits on personal attacks because they reduced the potential for arguments and therefore helped facilitate dignified and efficient proceedings. These objectives seem equally relevant in the context of prohibiting board members from responding to public comments. Finally, such a policy appears to be viewpoint-neutral, as it does not identify or single out any particular opinions or perspectives for differential treatment.

The next installment in this series will provide some practical tips for drafting and implementing public comment period rules.