City Councils Under Legal Pressure Not To Muzzle Public Speakers

, The Connecticut Law Tribune

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Cicero Booker
Cicero Booker

Municipal lawyers take notice: The public does not want to let elected local leaders avoid verbal criticism at public meetings.

That message was brought to the steps of city hall in Waterbury earlier this month, after the city's Board of Aldermen tried to alter its meetings policy to tamp down on the number of negative remarks it's been forced to endure.

Cicero Booker, a retired police lieutenant and past president of the Waterbury branch of the NAACP, took offense to the policy, which sought to prohibit "ad hominem, personal, malicious, slanderous or libelous remarks" during public speaking sessions at board meetings and hearings.

Naturally, the move spurred some critical public remarks.

"When I found out what the Board of Aldermen was doing, I was outraged," Booker said. "You can't limit the right of citizens to question or criticize our government without damaging our democracy."

Booker took his complaint a step further. He contacted the American Civil Liberties Union, which assigned a lawyer to step in on the public's behalf. A sharply worded letter, David McGuire, a staff attorney with the ACLU, alerted the board that restricting "what" people could say would be chilling to their 1st Amendment right to be heard.

The board of aldermen quickly backed down, rescinding its plan to alter the rules. Linda Wihbey, the city's corporation counsel, said the board opted not to pursue rule changes limiting public comments in any way, even those that are lawful, "because of the public outcry that ensued."

A similar issue was raised in Winchester in July, when the ACLU warned its Board of Selectmen that a policy change it was considering to forbid "personal complaints or defamatory comments" would be a violation of law. As in Waterbury, the Winchester town officials opted to discontinue the policy.

While case law has firmly established that governments are not required to grant members of the public any forum to be heard, the issue is still a thorny one. The law clearly prohibits any government action that restricts a person's opinion or viewpoint.

"Anything that would limit public participation in a public meeting is an unfortunate rule, but there is a doctrine out there that allows it," said Danie Silver, a first amendment lawyer in New Britain. "It's called the limited public forum rule and it says that a public meeting such as a town council meeting in not the same as a public forum in a park or on the street and your rights to be heard are limited, you don't have a mandatory first amendment right to speak," he said. "The reasoning behind it, is you have other means, you can write letters, or you can vote people who you don't like out of office."

Silver and other fist amendment lawyers say it appears that recent decisions affirming that law have given municipalities the opportunity to test the limits of the law.

The public's right to be heard at government meetings has been a hot topic since 2011, when a federal court in Connecticut ruled that local governments could in fact limit the public from speaking at meetings.

In the case of Smith v. City of Middletown, U.S. District Judge Janet Hall ruled the common council did not violate the First Amendment rights of citizens when it passed a resolution that limited speech during televised Council meetings to items that were on the agenda.

Before 2006, the counsel allowed members of the general public to speak on topics that were not on the meeting agenda. Those public comments were televised on a local access station, and were held before meetings when agenda items were discussed.

In October of that year, the council unanimously voted to change the meeting format, moving the public session for non-agenda items to the end of the public meeting, and ceasing televising of those meetings.

In 2009, the policy was again changed, removing the public comment section during public meetings. Instead, the council began holding monthly meetings for the public that were not part of the official council meetings.

It was that final format change that prompted Lee Smith and Donna Gagnon-Smith to sue the council, claiming the rule change was intended to limit their free speech rights. They further argued the council had targeted their rights specifically, accusing one council member of admitting the format was changed because "that couple" spoke before the council "all the time."

In her decision, Hall wrote "the right to petition the government for redress does not include a right to speak at the public hearing of a legislative body."

But under her ruling on the rights of governments to limit public comments, Hall was clear that the law clearly establishes that such limits must be "viewpoint neutral."

"A government entity," Hall wrote, can only impose restrictions on speech "that are reasonable and viewpoint neutral," and cannot engage in "viewpoint discrimination."

It was just that sort of slippery slope, by seeking to limit negative or defamatory comments, that the officials in Waterbury and Winchester had gotten themselves involved with.

To avoid these kinds of legal disputes, some municipal lawyers have advised governing bodies they represent to avoid public comments altogether, or at least limit the amount of public input time made available.

Kathleen Foster, assistant corporation counsel for the City of New Haven, said the law allows cities to conduct the business they need to get done. "Public meetings are not Speakers' Corner at Hyde Park," she said."They are gatherings at which the public's business is transacted, hopefully in an orderly and transparent manner."

While some city business, including zoning board matters, call for public input which is governed under specific statutes, many public agencies try to incorporate "public sessions" into their discussions on public policy.

The challenge, Foster said, is doing that "in a way that is not disruptive or unworkable."

Wihbey, the Waterbury city attorney, said the board had sought three changes to its meeting rules. The first, was to limit the public comments to areas on the agenda. The second was to prevent "harmful or negative comments." The third change didn't have anything to do with public comments at all, it sought to limit the time aldermen could speak to five minutes per topic.

She pointed out that the board agreed to back away from the changes, even though the only legal objection that was raised had to do with efforts to reduce negative public comments.

Wihbey said it can be a challenge balancing the law with the politics at the local level. "We have a lot of thing happening [in Waterbury] and we want to facilitate that business."

Sandy Staub, the lead lawyer at the ACLU in Connecticut, said her office will remain vigilant against any effort by local governments to commit "viewpoint discrimination."

"Free speech is an important issue for everyone in Connecticut and its one of the core issues we address, the right to be heard," Staub said. "There really aren't any organizations out there that are defending those rights, and as you can see with those attempted rule changes in Waterbury and Winchester, we can't trust the municipalities to defend those rights."

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