By Brett G. Johnson
Citizen participation at town council meetings increased during the last few years as debates raged over COVID-19 policies and school curricula. Individuals often use highly charged rhetoric or make personal accusations during public comment sessions.
To maintain order, towns across the region are now considering so-called “civility ordinances” that would proscribe speech that officials consider inappropriate. Preliminary research by the New England First Amendment Coalition shows a variety of ways these rules are written — from blatantly unconstitutional to First Amendment friendly — while some towns lack guidelines altogether.
As a matter of First Amendment law, public comment periods are a type of public forum. A town square, for example, is a public forum where a person can get on their soapbox and for the most part say whatever they like. If they are punished because of their viewpoints or using offensive language, the First Amendment will come to their rescue. Government can impose certain restrictions based on time, place or manner, but those restrictions must be content-neutral and there must exist reasonable alternative channels for the speech.
In some ways, a town council meeting is no different.
It is true that a greater degree of order must be maintained compared to speech in a town square to ensure the meeting focuses on a specific, preset agenda and finishes in a reasonable amount of time. Restrictions on speech, however, should not be directed at a speaker’s viewpoint or the impolite way they may choose to express themselves.
The Board of Aldermen of Nashua recently tabled debate on whether to repeal the city’s own civility ordinance that bans “crude, vulgar, profane and/or obscene remarks.” The New Hampshire ACLU and NEFAC wrote a letter to the Board in May asking it to repeal the ordinance following a major court decision in neighboring Massachusetts.
In Barron v. Kolenda, the state’s highest court held in March that a town civility ordinance violated the Massachusetts constitution which, it should be noted, is closely aligned with the New Hampshire constitution. The ordinance required all public comment at open meetings to “be respectful and courteous, free of rude, personal, or slanderous remarks” and stated that all “inappropriate language … would not be tolerated.”
While the decision is limited to meetings in Massachusetts, the court’s reasoning is instructive to government officials in New Hampshire. It held that towns were free to regulate public comment sessions in ways that were neutral toward the viewpoints of members of the public. They can establish rules limiting the subject matter of public comment to items on the council’s agenda, limiting the time for public comment, and only recognizing one speaker at a time. Towns can also prohibit speech that falls outside of constitutional protection, such as making true threats or inciting imminent violence. Still, the court warned that:
“Although civility can and should be encouraged in political discourse, it cannot be required. In this country, we have never concluded that there is a compelling need to mandate that political discourse with those with whom we strongly disagree be courteous and respectful.”
To get a sense of common practices in municipalities across the region, NEFAC requested copies of rules from the largest 20 municipalities in the six New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont). To date, 79 clerks (about 66% of those queried) responded. Some either sent copies of the rules or referred NEFAC to the municipalities’ websites. Some said they don’t have their own rules but instead follow Robert’s Rules of Order, which say nothing about public comments at meetings.
Here are a few take-aways from the research:
• Of the nine towns that responded to requests in New Hampshire, only Nashua has an ordinance explicitly prohibiting subjective categories of speech. Two cities (Dover and Rochester) had nearly identical rules stating “the presiding officer shall preserve strict order and decorum for and by all speakers appearing before the Council,” though the rules did not give criteria defining order and decorum. The rules for the Board of Aldermen of Manchester — New Hampshire’s largest city — did not contain any specific prohibitions against uncivil speech.
• Thirty-four of the 79 sets of rules (43%) contained some language limiting the tone or civility of public comments. These rules ranged quite a bit. Some ambiguously said that members of the public would be held to the same high standards of decorum to which council members are subject when they address each other, an approach most common in Rhode Island and Massachusetts. Other rules used one or more subjective adjectives to denote the speech prohibited by the public, such as “rude,” “indecent,” “offensive,” or “boisterous,” while also prohibiting “personal” or “insulting” remarks against specific members of the council.
• Some towns list these subjective categories of speech alongside types of speech that are unprotected under the First Amendment, such as true threats. A frequently prohibited category was “slanderous” speech. Slander is not protected under the First Amendment; it involves false statements about a person that harm their reputation. However, the use of this term in the context of civility rules is problematic because the speaker and subject of the speech may have different assessments of whether the speech is false and defamatory. This could lead to the silencing of true and critical speech simply because an official objects to the criticism.
• Fifty-four percent of responses did not indicate any explicit rules for civility during public comment periods. Of these, some said their town councils merely followed Robert’s Rules of Order. Others had regulations that were completely content-neutral, such as banning signs or limiting the time of the speaker regardless of their message.
• A few rules said only that public comment sessions would occur during meetings. Although not explicitly banning uncivil — and First Amendment protected — speech may seem like a wise policy, the lack of affirmatively recognizing the right of the public to use whatever rhetoric they like, still opens the door for council members to silence speech they find objectionable.
So, is there a model for towns to use when drafting their own rules and ordinances? Lewiston, Maine, may have struck the right balance. The town uses affirmative language that respects an individual’s First Amendment rights while encouraging residents to speak responsibly:
“As a limited designated public forum, the City Council does not have the right to prohibit disparaging, rude and other remarks of a personal nature. But, because of the potential implications, including personal liability of the speakers, we encourage any speakers to strive to be accurate in their statements and avoid making personal, rude, or provocative remarks.”
Brett G. Johnson, PhD, is a visiting associate professor at the University of Iowa and a Juris Doctor Candidate at the University of Iowa College of Law. He is a 2023 Summer Legal Fellow for the New England First Amendment Coalition.
This article was first distributed by The Granite State News Collaborative.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Leadership Circle donors include the Rhode Island Foundation, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Hearst Connecticut Media Group, Boston University, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett for the First Amendment Museum, Linda Pizzuti Henry, the Champa Charitable Foundation Fund and Connecticut Public.