By David L. Hudson Jr., First Amendment Scholar

“The public nature of the legislative process and the right of citizens to participate in and voice
their opinions about that process are at the heart of democratic government. The government
may not impose viewpoint-based restrictions on expression in a limited public forum ……….”
City of Dayton v. Esrati (1997), the Ohio Appeals Court

A citizen feels strongly about an issue in the community. He or she attends a city council
meeting to voice those concerns. Unfortunately, the powers that be prohibit the citizen from
addressing the controversial topic. Have the citizen’s First Amendment rights been violated?
Such a scenario is not a product of a healthy imagination. It is a daily reality for countless
citizens across the country.
Sometimes government officials need to silence disruptive citizens or to prohibit endless
repetition. However, other times the officials may be squelching citizen speech because they
want to suppress the message. This article seeks to explain the legal parameters surrounding
the regulation of citizen speech.

Many government meetings are open to the public and reserve a “public comment” time for
citizen commentary on issues. The 9th U.S. Circuit Court of Appeals explained in its 1990
decision White v. City of Norwalk: “Citizens have an enormous First Amendment interest in
directing speech about public issues to those who govern their city.” These meetings,
particularly the “public comment” period, are at the very least a limited public forum during
which free-speech rights receive heightened protection.
Types of public forums
In First Amendment jurisprudence, government property that has by tradition or by
government operation served as a place for public expression is called a traditional public
forum or a limited public forum. In a traditional public forum, such as a public street, speech
receives the most protection and the government generally must allow nearly all types of
speech. Restrictions on speech based on content (called content-based restrictions) are
presumptively unconstitutional in a traditional public forum. This means that the government

can justify them only by showing that it has a compelling state interest in imposing them, and
that it has done so in a very narrowly tailored way.
At limited or designated public forums, however, the government designates certain types of
subject matter. One court explained as follows: “After the government has created a
designated public forum, setting boundaries on classes of speakers or topics, designated public
fora are treated like traditional public fora.” This again means that content-based exclusions
face a high constitutional hurdle. Even in nonpublic forums, restrictions on speech must be
reasonable and viewpoint-neutral.
One must be careful in discussing the public-forum doctrine, because courts do not apply the
doctrine with consistency. For example, some courts equate a limited public forum with a
designated public forum. Other courts distinguish between the two, as a 2001 federal district
court in Pennsylvania did in Zapach v. Dismuke. That court noted that “there is some
uncertainty whether limited public fora are a subset of designated public fora or a type of
nonpublic fora.”
Just because something is called a public forum doesn’t guarantee a person unfettered freedom
to utter whatever is on his mind. Public bodies can limit their meetings to specified subject
matters. Also, the government may impose reasonable time, place and manner restrictions on
speech as long as those restrictions are content-neutral and are narrowly tailored to serve a
significant government interest.
In other words, the government could impose a 15-minute time limit on all participants as long
as it did not selectively apply the rule to certain speakers. Council members would violate the
First Amendment if they allowed speakers with whom they agreed to speak a full 15 minutes,
but allowed speakers they did not agree with to speak for only five minutes.
It bears stressing that First Amendment rights are not absolute during public-comment periods
of open meetings. Speakers can be silenced if they are disruptive. Disruption has been defined
to include far more than noisiness and interference. For example, a federal district court in Ohio
wrote in Luckett v. City of Grand Prairie (2001) that “being disruptive is not confined to physical
violence or conduct, but also encompasses any type of conduct that seriously violates rules of
procedure that the council has established to government conduct at its meetings.”
“A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or
by extending discussion of irrelevancies,” the 9th Circuit wrote in White v. City of Norwalk. “The
meeting is disrupted because the Council is prevented from accomplishing its business in a
reasonably efficient manner. Indeed, such conduct may interfere with the rights of other
speakers.”
Unfortunately, many situations arise in which citizens are silenced because of the content of
their speech or because they have disagreed previously with a government official. This raises
the specter of censorship. Government officials may not silence speech because it criticizes
them. They may not open a “public comment” period up to other topics and then carefully pick

and choose which topics they want to hear. They may not even silence someone because they
consider him a gadfly or a troublemaker.
In City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, (1976)
the U.S. Supreme Court said in a collective-bargaining dispute case arising out of teachers’
speaking at a board of education meeting:
“Regardless of the extent to which the true contract negotiations between a public body and its
employees may be regulated — an issue we need not consider at this time — the participation
in public discussion of public business cannot be confined to one category of interested
individuals. To permit one side of a debatable public question to have a monopoly in expressing
its views to the government is the antithesis of constitutional guarantees. Whatever its duties
as an employer, when the board sits in public meetings to conduct public business and hear the
views of citizens, it may not be required to discriminate between speakers on the basis of their
employment, or the content of their speech.”
A federal district court in Pennsylvania explained in the 1993 decision Wilkinson v. Bensalem
Township: “Allowing the state to restrict a person’s right to speak based on their identity could
quickly lead to the censorship of particular points of view.”
An Ohio appeals court refused to dismiss the lawsuit of an individual who sued city officials
after being thrown out of a city commission meeting for wearing a ninja mask. In City of Dayton
v. Esrati (1997), the Ohio appeals court reasoned that the individual wore the mask to convey
his dissatisfaction with the commission. “The public nature of the legislative process and the
right of citizens to participate in and voice their opinions about that process are at the heart of
democratic government,” the court wrote. “The government may not impose viewpoint-based
restrictions on expression in a limited public forum unless those restrictions serve a compelling
state interest and are narrowly drawn to achieve that end.”
Other issues
Courts have also been wary of laws, rules or regulations that prohibit criticism or personal
attacks against government officials. A federal district court in California invalidated a school
district bylaw that prohibited people at school board meetings from criticizing school district
employees. In Leventhal v. Vista Unified School District (1997), the court wrote: “It seems clear
that the Bylaw’s prohibition on criticism of District employees is a content-based regulation. …
It is equally clear that the District’s concerns and interests in proscribing public commentary
cannot outweigh the public’s fundamental right to engage in robust public discourse on school
issues.”
Similarly, a federal district court in Virginia struck down a school board bylaw that prohibited
personal attacks during public comments at meetings. (SeeBach v. School Board of the City of
Virginia Beach, 2001.)
However, a higher court – the 4th U.S. Circuit Court of Appeals – questioned the reasoning of
the federal district court decision in Bach. In Steinburg v. Chesterfield County Planning

Commission, the 4th Circuit wrote: “We conclude that a content-neutral policy against personal
attacks is not facially unconstitutional insofar as it is adopted and employed to serve the
legitimate public interest in a limited forum of decorum and order.” The appeals court reasoned
that the policy was content-neutral, as people could still present their viewpoints and messages
disagreeing with certain policies without resorting to personal attacks.
Another kind of restriction on citizen speech at public meetings involves residency. One federal
appeals court determined that a city council rule prohibiting nonresidents from addressing the
city council was constitutional. In Rowe v. City of Cocoa (2004), a three-judge panel of the 4th
Circuit determined that a resident rule was reasonable and viewpoint neutral. “A bona fide
residency requirement … does not restrict speech based on a speaker’s viewpoint but instead
restricts speech at meetings on the basis of residency.”
Conclusion
When a government decides to offer a “public comment” period at an open meeting, it
provides that citizens may exercise their First Amendment rights. Government officials can limit
comments to the relevant subject matter, control disruptive or overly repetitive speakers and
impose reasonable time, place and manner restrictions on speech. However, when government
officials create a public-comment forum, they have created a limited public forum in which
greater free-speech protections apply. The government may not silence speakers on the basis
of their viewpoint or the content of their speech. The government must treat similarly situated
speakers similarly. In essence, the government must live up to the values embodied in the First
Amendment.