Can a city council reduce the time allotted for individual public comment?

Answer

As discussed further below, courts have previously found that restrictions on public comment — including reducing the typically allotted time per speaker — can sometimes be permissible.

Brown Act: General overview

As discussed generally on our website, the Brown Act governs the conduct of meetings in that it generally requires advance notice of the meeting and its agenda, prohibits discussion or action on items not listed on the agenda and requires opportunities for public comment, among other things.

With respect to public comments, the Brown Act states, “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54954.3(a).

This statute “has been construed to mean that for each agenda of a regular meeting, there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.” Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1079 (2008).

Under Government Code section 54954.3(b)(1), the legislative body may adopt “reasonable regulations” to ensure the public’s right to comment in section (a) above is carried out, “including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”

That said, “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Govt. Code § 54954.3(c).

Courts accord significant flexibility to legislative bodies in determining what is a “reasonable” regulation of public comment, as long as the bodies do not discriminate based on viewpoint or prohibit criticism. As one court noted:

[H]aving no limit on either the length of any particular presentation by a member of the public or on the number of public speakers (or on the total time for public comment) has the potential for endless discussion—given the potential that there will be a far greater number of members of the public who may wish to speak to an issue than there are staff and guests who make presentations concerning it. The number of staff and invited guests speaking on a topic will clearly be limited; the potential for public speakers is potentially extensive and needs some reasonable limitation.

Ribakoff v. City of Long Beach, 27 Cal. App. 5th 150, 172 (2018).

Reducing public comment time

The Court of Appeal has addressed the time limitation you describe: reducing the typically allotted time per speaker for public comment.

The Court of Appeal held it did not violate the Brown Act when the chair of a legislative body “announced at the beginning of the meeting that public comment on each agenda item would be limited to two minutes per speaker, instead of the three minutes normally allotted to each speaker,” because the chair “anticipated that four of the items on the agenda would be lengthy, and the Commission would not be able to complete the meeting in a reasonable period unless public comments were shortened.” Chaffee v. San Francisco Public Library Comm., 134 Cal. App. 4th 109, 111–12 (2005).

In Chaffee, the Court of Appeal determined that if a rule indicates that each speaker during a public comment period may speak for “up to three minutes,” then the legislative body may “exercise their reasonable discretion in departing from the normal time limits.” 134 Cal. App. 4th at 114–15. “For instance, setting stricter time limits might be necessary in order to allow every member of the public who wished to speak to do so within the total time allotted for public comment, or in order to complete a meeting with a lengthy agenda within a reasonable period of time.” Chaffee, 134 Cal. App. 4th at 115.

Further, “[t]he Brown Act does not specify a three-minute time period for comments, and does not prohibit public entities from limiting the comment period in the reasonable exercise of their discretion.” Chaffee, 134 Cal. App. 4th at 116.

Apart from the Brown Act, the First Amendment generally reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). “Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

In general, the Ninth Circuit has said the public comment portion of a city council meeting can be considered a limited public forum, in which restrictions on speech are typically upheld if they are deemed reasonable and viewpoint neutral. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

For example, rules imposing time limits or restricting comments to relevant subjects might be deemed reasonable if they are applied equally to all speakers. But generally “a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing.” White v. Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); see also, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812–13 (9th Cir. 2013) (rule against “personal, impertinent, profane” or “insolent” remarks at city council meeting violated First Amendment).