October 28, 2024
Last month, Rebekah Massie, a private citizen, brought a federal lawsuit against the City of Surprise, Arizona alleging the City violated her First Amendment rights when, after she started to complain about City employees during a City Council meeting, the City prohibited her from speaking, detained her, ejected her, and then cited her for trespassing.
During the public comment portion of the City of Surprise’s August 20, 2024 Council meeting, Ms. Massie criticized the City Attorney’s salary increase. Halfway through her comments, the Mayor of Surprise, interrupted Ms. Massie and told her that she could not orally complain about City employees during the public-comment period, pursuant to the City Council’s “Criticism Policy.” That Policy states:
“Oral communications during the City Council meeting may not be used to lodge charges or complaints against any employee of the City or members of the body, regardless of whether such person is identified in the presentation by name or by any other reference that tends to identify him/her. Any such charges or complaints should be submitted during normal business hours to the City Manager for appropriate action.”
Ms. Massie argued that the First Amendment allowed her to make her remarks during public comment and requested an opportunity to do so, but the Mayor said that if she did not stop talking, she would be escorted out of the meeting. When Ms. Massie continued her comments, she was immediately detained by a police officer, ejected from the premises under the direction of the Mayor, and cited for trespassing.
Not surprisingly, Ms. Massie has now sued the City of Surprise alleging that the City violated her First Amendment rights.
As our local government clients are aware, our law firm has carefully considered the issues involved in the regulation of public comment at city council and village board meetings, and we have developed a set of model rules for lawful regulation of public comment. Our model rules do not include criticism constraints such as those adopted by the City of Surprise. We believe that these comments are generally protected by the First Amendment, no matter how uncomfortable it may be to hear them – which is why we believe that Ms. Massie has a high likelihood of success in her case.
Actions taken by public officials during the public comment period, and rules that pertain to public comment, must be narrowly tailored to comply with the First Amendment. In Illinois, the opportunity for public comment is specifically mandated by Section 2.06(g) of the Open Meetings Act, which provides that “Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” 5 ILCS 120/2.06(g). While public bodies are thus allowed to require public comment to adhere to locally established rules, those rules must not be more restrictive than the First Amendment allows.
The Illinois Attorney General’s Public Access Counselor (“PAC”) has weighed in on several occasions concerning the types of permissible restrictions on public comment.
Last year, the PAC discussed the interplay between the First Amendment and rules adopted under Section 2.06(g) of the Open Meetings Act. The PAC noted that while Section 2.06(g) does not specifically address the nature of rules that a public body may enforce during public comment, the First Amendment ordinarily permits only “reasonable time, place and manner restrictions” that are content neutral in a designated public forum such as a board meeting. Ill. Att’y Gen. Pub. Acc. Op. No. 23-013 (September 13, 2023).
In 2021, the PAC determined that rules governing decorum are permitted only if they are directed to conduct actually disturbing a meeting. Specifically, the PAC stated that a public body “may properly adopt reasonable public comment rules aimed at fostering order and decorum and may stop disruptive conduct during a meeting.” Ill. Att’y Gen. Pub. Acc. No. 21-009 (September 21, 2021). Note that the rule the PAC approved here related to regulating conduct as opposed to regulating or prohibiting the content of speech.
The PAC has also opined that when criticism involves conduct of present or former public officials in the performance of public duties, the speaker has significant latitude. Ill. Atty Gen. PAC Req. Rev. Ltr., 65871, 65961, 66133 (March 16, 2021). This opinion stemmed from a City of Urbana City Council meeting at which the City muted two residents who expressed critical opinions about City officials during public comment because they were allegedly “abusive.” Urbana’s public comment rules provided that “The presiding officer of the meeting shall have the authority to provide a verbal warning to a speaker who uses abusive, harassing, threatening, or defamatory language, or who engaged in disorderly conduct that disrupts, disturbs, or otherwise impedes the orderly conduct of a meeting.” Urbana’s rules defined “abusive” to include “derogatory language which would demean the dignity of an individual which is intended to humiliate, mock, insult, or belittle an individual.” The PAC ruled that Urbana violated the Open Meetings Act by muting the two residents – their statements were protected under the First Amendment, neither speaker engaged in disorderly conduct, and it was not necessary to silence the residents in order to maintain decorum.
However, none of this means that a village board or city council is required to allow speakers to discuss whatever they want during public comment at a regular board meeting. During these meetings, a public body may limit public comment to items germane to the public body, if the public body has adopted such a rule. This rule also applies to subsidiary bodies such as plan commissions and zoning boards of appeals. These bodies may also limit public comment to items germane to those specific public bodies. For instance, a zoning board of appeals with a written germaneness rule could properly prohibit public comment on an unrelated employment matter or public works project having nothing to do with any project that might come before that board.
Finally, one additional important nuance to these general rules applies in the context of special meetings held under the Open Meetings Act. In 2024, in Eberhardt v. Village of Tinley Park, the Illinois Appellate Court upheld Tinley Park’s requirement that public comment at special board meetings must be germane to the specific items on that special meeting agenda. 2024 IL App (1st) 230139. The Court held that such a rule did not violate the Open Meetings Act or the Illinois Constitution because special board meetings (unlike regular board meetings) are not designated public forums, and therefore reasonable, viewpoint neutral restrictions (such as prohibiting comments on matters not on the special meeting agenda) are generally permitted. Id. at ¶ 41.
A link to the Complaint made against the City of Surprise can be found here. For more information about this case, contact Courtney Willits or any Elrod Friedman attorney.
Illinois Appellate Court upheld Tinley Park’s requirement that public comment at special board meetings must be germane to items on the agenda. 2024 IL App (1st) 230139. The Court held that such a rule did not violate the Open Meetings Act or the Illinois Constitution, because this dispute related to comments at a special board meeting and special board meetings (unlike regular board meetings) are not designated public forums, and therefore reasonable, viewpoint neutral restrictions are generally permitted. Id. at ¶ 41. Such a germaneness requirement applied to regular meetings would almost certainly fall in a First Amendment challenge under the current state of law.
All public bodies should have rules governing public comments. These rules may distinguish to some degree between regular and special meetings. Specifically for regular meetings, the rules may not prohibit comments that criticize government or government staff or officials. Public bodies should abide by the guidance provided by the PAC and the Illinois courts to develop and adopt rules that are reasonable and content-neutral.
A link to the Complaint made against the City of Surprise can be found here. For more information about this case, contact Courtney Willits or any Elrod Friedman attorney.