The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Say What?!: A Look at the Right to Speak at Public Meetings Under the Illinois Open Meetings Act and the First Amendment
By Matthew J. Hafeli

One of the most cherished rights of Americans is the First Amendment right to freedom of speech, and one of the greatest passions of many Americans is personal participation in the governmental process.  With the passage of Public Act 96-1473, the Illinois General Assembly amended the Open Meetings Act to require public bodies to allow the general public the right to speak at public meetings.  The Open Meetings Act now provides in section 2.06(g):

Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.

This article will provide a brief overview of First Amendment strictures on public speech at meetings of governmental bodies. It will then take those First Amendment guidelines and turn them into simple rules that can serve as a starting point for public bodies wishing to adopt their own rules in accordance with the Open Meetings Act.

Public comments at a public meeting: An overview

While opening up a new right to the general public, this amendment to the Open Meetings Act provides public bodies with scant guidance as to how this right should be applied, and unfortunately, the General Assembly’s pre-passage “debates” provide little clarification.  Representative Renée Kosel stated that the amendment “requires that all the entities of government have public comment under their own rules and regulations and that people have the right to speak [ ] at meetings.”[1]  Senator Susan Garrett simply stated that the amendment “is to make sure that the municipality has procedures in place for public testimony.”[2]

With this lack of clarity and direction at the state level ass to what strictures a public body can place on the rights of the general public to speak at meetings, public bodies should look to federal case law in the First Amendment context for guidance, as the issue there has been much more fully vetted.  Generally speaking, the United States Constitution does not expressly guarantee members of the public the right to be heard by public bodies.[3]  However, once a public body does allow for public comments at its meetings, whether by a state open meetings law similar to that in Illinois,[4] or of its own accord as a way to maintain full and robust public participation in government, a veritable Pandora’s box of First Amendment rights is opened, and the public body must be sure to not violate those rights.

In Surita v. Hyde,[5] a citizen was barred from speaking at a public meeting until he apologized for allegedly abusive language he had previously used against a city employee.  This provided the Seventh Circuit with an opportunity to address general First Amendment issues applicable to public meetings that have been opened for public comment.[6]  While certainly the public comment portion of a meeting was not found to be a traditional public forum, such as a park, street, or sidewalk, the court did hold there to be “no doubt” that the public comment portion of a meeting constituted a designated public forum, which is a location or channel of communication opened up by a government for public expressive activity.[7]  Such a forum is created “when the government intentionally makes property or a channel of communication generally open or available to a class of speakers rather than permitting only selective access to particular speakers who must obtain permission to use it.”[8] 

Once a public body has opened a designated public forum, it only retains a limited ability to regulate expressive activity, and any content-based restrictions on speech must pass a strict scrutiny test, must be essential to serve a compelling state interest, and must be narrowly drawn to achieve that interest.[9]  More specifically, the “government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”[10]  However, the opening of a designated public forum does not provide members of the general public carte blanche to express themselves in any manner they choose.  The government can “enforce reasonable time, place, and manner restrictions provided they are content neutral, they are narrowly tailored to serve a significant government interest, and ample alternative channels of communication exist.”[11]

First Amendment treatment of rules regulating public comment

Federal courts have extensively analyzed time, place, and manner restrictions enforced by various public bodies in relation to the public comment portion of public meetings.  The principles espoused in these cases, along with the general principles laid out in Surita,[12] should serve as a guide for any public body seeking to implement the recent amendment to the Illinois Open Meetings Act.

The facts in Surita provide a unique starting point for an analysis of time, place, and manner restrictions.  There, as noted above, the plaintiff was prohibited from speaking during the “audience time” of a meeting until the plaintiff apologized to a city employee whom the plaintiff allegedly had criticized at a large public rally.  The Seventh Circuit found, that because the plaintiff was a speaker within the class that the designated public forum was made available to, the mayor’s actions in barring anything and everything the plaintiff had to say were subject to strict scrutiny.[13]  The mayor argued that because he wanted to bar the speech based on the plaintiff’s earlier actions, the ban imposed was content neutral and therefore permissible.[14]  The court rejected this argument, finding that the mayor’s requiring an apology was a content-based restriction because it used prior speech to prohibit subsequent speech, and this restriction failed to pass the strict scrutiny test and was a violation of the plaintiff’s First Amendment rights.[15]

In Sandefur v. Village of Hanover Park,[16] a case similar to Surita, the plaintiff, Brad Sandefur, a correctional officer with a handgun concealed under his jacket, addressed the village board at a public meeting in a “very animated” way.[17]  When village officials became aware of the handgun, two village police officers escorted Sandefur out of the meeting where the officers searched him, examined his credentials, and removed his handgun.[18]  During this search, Sandefur was “a bit loud”, upset, and “agitated,” and he was ultimately told to leave the premises under threat of arrest for trespassing and was prohibited from finishing his presentation before the board.[19]  The court noted it was well-settled that the village had significant interests in maintaining order and public safety at its meetings, thus the initial decision to remove Sandefur was appropriate.[20]  The court also found the decision to keep Sandefur from the meeting to be appropriate because allowing a loud, agitated, and armed person back into the meeting could have further disrupted the meeting.[21]  Additionally, the village left sufficient alternative channels of communication open when it told Sandefur he could speak at the next meeting or could write or email the board members.[22]  Ultimately, the village was entitled to summary judgment on Sandefur’s First Amendment claims.[23]

In O’Neill v. Richland County Board,[24] the plaintiff was given an opportunity to speak near the end of the county board meeting, but was ultimately denied that opportunity because the board adjourned the meeting after prolonged discussion of other items on that meeting’s agenda.[25]  The Seventh Circuit affirmed the district court’s denial of the First Amendment claim, holding that adjourning a meeting when board members were tired after a long and difficult discussion was a content-neutral regulation of time and place of the plaintiff’s speech and that it “was narrowly tailored to the significant government interest in the orderly and efficient management of the board’s business.”[26]

In Anderson v. City of Bloomington, Ind.,[27] the plaintiff argued that the city’s rules relating to the public comment portion of city council meetings violated his First Amendment rights, after he was removed from a meeting for refusing to stop speaking past his allotted time.[28]  The city council’s rules for public comment at its meetings provided for an initial twenty minute comment period and a later twenty-five minute comment period.  Citizens were allowed to speak at only one of the comment periods for a maximum of five minutes, unless numerous people wished to speak, at which point the time would be reduced.  Furthermore, while a citizen could comment on any matter of community concern not listed on the agenda, there could be no question-and-answer exchange with the council, and speakers needed to “refrain from language which would incite an immediate breach of the peace; refrain from undue repetition, extended discussion of irrelevancies, obscenity, and personal attacks against private individuals unrelated to the operation of the city.”[29]  The court denied the plaintiff’s First Amendment claim and succinctly gave its affirmation of the disputed public comment rules in holding:

To allow each speaker to talk endlessly with no guidelines as to their manner of speech would defeat the reasonable governmental purpose of conducting a civil and productive meeting.  Anderson has pointed to no rule restriction that is based on the content of his speech.  The rules properly limit the time and manner of each speaker’s expressions, not the content.  Under these circumstances, the rules pass constitutional muster and will not be “abolished.” [The plaintiff] has shown no violation of his First Amendment rights.[30]

In addition to the holding in Anderson, other courts have upheld similar rules and restrictions placed on public comment portions of public meetings.  In I.A. Rana Enterprises, Inc. v. City of Aurora,[31] public comments at a public meeting were subject to a relevancy requirement and a three-minute time limit.  The court held that the time limit served “‘significant governmental interest in conserving time and in ensuring that others ha[ve] an opportunity to speak’”[32] and also that “[a] council does not violate the First Amendment when it limits public participants to speaking only about subjects on the agenda.”[33]  Similarly, in Steinburg v. Chesterfield Cty. Planning Comm’n,[34] the Fourth Circuit found a public body “justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.”[35]

Basic rules to be considered for public comment at public meetings. With the above First Amendment principles serving as a guide, an Illinois public body can comply with its requirements under the Open Meetings Act by carefully adopting rules for public comment that are tailored to the individual needs of that particular body.  The following rules suggest a solid starting point when deciding what rules to implement.

1.    Any person shall be allowed to speak at any public meeting on any matter of public concern.[36]  No person shall be prevented from speaking on the basis of any prior speech.

2.    Every public meeting shall set apart a maximum time of thirty (30) minutes near the beginning of each meeting to allow for public comments.[37]

3.    Each person who wishes to speak will be allotted no more than five (5) minutes, unless the presiding officer reduces the allotted time if numerous people wish to speak.

4.    Each person who wishes to speak must place his or her name on a speaker’s list prior to the start of the meeting, and speakers will be called to speak in the order of the list.  In the event that the thirty minute time period elapses before all speakers have an opportunity to be heard, those speakers on the list still wishing to be heard shall retain their position on the list for the public comment portion of the next meeting.

5.    Each speaker must maintain civility and cannot disrupt an orderly meeting by using obscene or threatening language or gestures.  Any person who poses a threat to public safety will be removed from the meeting.

6.    Any person shall be permitted to address the public body or any member of the public body at any time via mail or email.[38]

Conclusion. Each public body should adopt rules for public comment at its meetings that are uniquely suited to address the needs of that particular public body.  A point of emphasis should also be made to avoid enforcing rules that are vague or overbroad.[39]  Ultimately, by crafting rules that comply with existing First Amendment precedent, an Illinois public body will be in compliance with the recent amendment to the Illinois Open Meetings Act, and will thus make way for a more open and accountable government that can better serve its citizens, while still balancing the need for order and control at public meetings.

[1].  96th Ill. Gen. Assem., House Proceedings, March 25, 2010, at 129.

[2].  96th Ill. Gen. Assem., Senate Proceedings, May 4, 2010, at 118-19.

[3].  Minn. State Bd. of Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984).

[4].  See, e.g. Cal. Gov’t Code § 54954.3 (West 2012) (“Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body...”).

[5].  665 F.3d 860 (7th Cir. 2011).

[6].  Id.

[7].  Id. at 869.

[8].  Id. (citing Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 678-79 (1998)).

[9].  Surita, 665 F.3d at 870 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

[10].  Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

[11].  Surita, 665 F.3d at 870 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

[12].  665 F.3d 860 (7th Cir. 2011).

[13].  Id. at 870.

[14].  Id. at 871.

[15].  Id. at 871-72.

[16].  Case No. 10 C 5851, 2012 WL 2062594 (N.D. Ill. June 7, 2012).

[17].  Id.

[18].  Id.

[19].  Id.

[20].  Id. at *4.

[21].  Id. at *5.

[22].  Id. at *6.

[23].  But see Laskowski v. Snyder, Case No. 05 C 502, 2007 WL 118535 (N.D. Ind. Jan. 10, 2007) (finding a genuine issue of material fact as to whether the plaintiff’s removal from a town council meeting for speaking out of turn was necessary to serve a compelling interest in conducting an orderly and efficient meeting).

[24].  114 F.App’x 745 (7th Cir. 2004).

[25].  Id. at 746.

[26].  Id. at 746-47; see also Lewis v. Silverman, Case No. 05 C 352 PS, 2006 WL 2699733, at *10 (N.D. Ind. Sept. 19, 2006) (finding no First Amendment violation when a person was not able to speak at a public meeting due to an early adjournment of the meeting because “[a] state’s refusal to listen to someone speak is not the same as the state restricting someone’s speech”).

[27].  Case No. 11 C 741 SEB DML, 2012 WL 2034174 (S.D. Ind. June 6, 2012).

[28].  Id. at *1-2.

[29].  Id

[30].  Id. at *3.

[31].  630 F.Supp.2d 912, 919-20 (N.D. Ill. 2009).

[32].  Id. at 923 (quoting Wright v. Anthony, 733 F.2d 575, 577 (8th Cir. 1984)).

[33].  I.A. Rana, 630 F.Supp.2d at 924.

[34].  527 F.3d 377 (4th Cir. 2008).

[35].  Id. at 385.

[36].  As noted above, some courts have allowed rules limiting public comments to only items on the agenda.  However, to enact such limits would seem to be contrary to the purpose of a more open and accessible government under the Open Meetings Act.

[37].  There is no authority requiring the public comment portion of a meeting to be at or near the beginning of the meeting.  However, while the court in O’Neill found no First Amendment violation when the meeting ended before the plaintiff was given an opportunity to speak, if a public body in Illinois had a regularly scheduled public comment portion at the end of a meeting and then adjourned the meeting without providing “an opportunity to address [the] public officials,” then the public body would be in violation of the Open Meetings Act without necessarily violating the First Amendment.  Thus, to avoid the temptation to pass over public comments placed at the end of an agenda, it would be advisable for a public body to fulfill its obligations under the Open Meetings Act sooner rather than later in the meeting.

[38].  While this rule does not directly relate to speaking at a meeting, from a First Amendment standpoint, it clearly shows that a public body provides ample alternative channels of communication.

[39].  See Acosta v. City of Costa Mesa, - - - F.3d - - -, 2012 WL 3834658 (9th Cir. Sept. 5, 2012) (holding that a rule barring “insolent” speech at a public meeting to be overbroad on its face because “it unnecessarily sweeps a substantial amount of non-disruptive protected speech or expressive conduct within its prohibiting language”).

Matthew J. Hafeli graduated summa cum laude from Liberty University in 2007 with a Bachelor of Science degree in History and graduated magna cum laude from Northern Illinois University College of Law in 2010.  He is currently an associate at Hervas, Condon & Bersani, P.C. in Itasca, where his practice concentrates on representing local governmental entities and public employees.

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