Civility in Government Meetings: Balancing First Amendment, Reputational Interests, and Efficiency

Terri R. Day, Barry University School of Law
Erin Bradford

Abstract

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that govern public comment, public entities adopt rules of decorum, aimed at maintaining civility to achieve the dual goals of promoting citizen participation and accomplishing government business. The public forum doctrine dictates the “when, what, and how” government can restrict speech and the applicable standard of scrutiny. The unique aspects of public comment sessions make forum categorization difficult. Lower federal courts addressing the constitutionality of civility rules have struggled with these issues. This article suggests the application of a “hybrid” category of a “limited” designated public forum with heightened scrutiny review for speech restrictions in public comment sessions. This solution protects both citizen participation and the efficient advancement of government business. Finally, this article provides practical guidance to local governing boards in adopting rules of decorum which comport with First Amendment principles.