In Merriott v. City of Bossier City, the Fifth Circuit Court of Appeals held that a city’s “decorum” policy for city meetings violated the First Amendment because it was overly broad as well as vague in prohibiting personal, impertinent, and slanderous remarks and “becoming boisterous” during public comment.
An online journalist attended city council meetings where the city clerk read from the city’s rules of decorum for public comment. Those rules included restrictions on cell phone usage, imposed time limits on speakers, and required the audience to maintain decorum. At one of the meetings, the city clerk read the following statement:
Any person
making personal, impertinent or slanderous remarks or who shall become
boisterous while addressing the Council shall be forthwith, by the President
Pro-tem, barred from further audience before the Council unless permission
to continue by [sic] granted by a majority vote of the Council” (the
“Policy”)….All remarks shall be addressed to the Council as a body and not
to any member thereof. No questions shall be asked a [sic]
Council person or the mayor except through the meeting chair.
All other audience members are asked to please observe the
meeting quietly. City Council appointed Sergeant at Arms have
been instructed to maintain decorum and ask anyone in
violation to step out of the meeting.
Merriott again “criticiz[ed] the Council for failing to listen to the Mayor and
the citizens.
The journalist spoke during public comment at several meetings and criticized the city on a decision relating to term limits. He was interrupted by councilmembers reminding him of the decorum rules. After one of the meetings, the journalist wrote a letter to the city, requesting the council respect his First Amendment rights and not interrupt him during public comment. At the next meeting, he was again interrupted during public comment and threatened with removal. He then sued, alleging violations of the state’s open meetings laws and his First Amendment rights. The district court dismissed his case, and he appealed.
The Fifth Circuit Court of Appeals reversed part of the dismissal of his case, finding that the journalist had plausibly alleged in his complaint that the city’s public comment policy was unconstitutional. First, the Court found that the policy’s prohibition on “personal” remarks was too broad because its enforcement could capture protected free speech, such as criticism of individual councilmembers. Second, the Court found that the prohibition on “impertinent” remarks was also too broad because it allows the city council to decide which comments are permissible at its whim. Third, the Court struck down the policy’s ban on “slanderous” remarks, finding that it was too broad because it placed a speaker in doubt about what he or she could say about public officials and public figures. Fourth, the Court found that the policy’s ban on persons who “become boisterous” was too broad because it went beyond conduct and would also apply to speech, implicating the First Amendment. The Court also found the policy to be too vague because the terms “personal” and “impertinent” were undefined and, therefore, failed to provide speakers with a “reasonable opportunity to know what conduct is prohibited.”
In sum, the Court found that the city’s public comment policy was overly broad and too vague, and remanded the case back to the district court for further proceedings. The Court upheld the district court’s findings in favor of the city on the journalist’s open meetings act and content-based discrimination claims, however.
Although this case is out of the Fifth Circuit (which does not cover Illinois), it is consistent with Illinois Attorney General opinions and court rulings that question public comment policies that go beyond regulating conduct.
