Question
Recently a school board adopted a policy that forbids individuals from making critical remarks about staff/board members. I am familiar with Baca v. Moreno Valley USD where the school board there tried to stifle free speech in a similar way and ended up on the losing end of the argument in court. The School District board of trustees recently included the following language on the agenda and I’m wondering if it violates a citizen’s First Amendment rights for the same reasons outlined in Baca. The language is as follows: “The board respects the right of the members of the public to speak to the board regarding matters on the agenda and other matters within the jurisdiction of the board. However, it is important for members of the public to understand that derogatory comments against district employees, or others, made in a board meeting, can be actionable as defamation under certain circumstances. In addition, derogatory comments made at a board meeting which are repeated outside the context of a board meeting may be actionable as defamation.
Comments regarding an individual will not be allowed in open meeting. The board also wishes to make clear that it is bound by the limitations set forth in government code section 549557, which states that when specific complaints or charges are to be made against a district employee, such employee has the right to have such complaints heard in closed session and to be given prior notice that such complaints will be heard by the board. Therefore, members of the public who wish to lodge complaints against district employees are reminded that the board cannot properly consider such complaints without given prior notice to the named employee. The board also would like to remind anyone who wishes to lodge a complaint against a district employee that there is an existing board adopted policy in effect specifically for this purpose. This policy contains a comprehensive procedure for reviewing and investigating public complaints, which include a right of appeal to the board. This process provides a much more through opportunity for the complainant and the employee to be heard and the merits of the complaint to be properly investigated.”
Answer
The Brown Act allows a legislative body to “adopt reasonable regulations . . . including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.” Cal. Govt. Code Section 54954.3(a)-(b). A legislative body can take action against “disruptive” speech, but it can’t prevent critical speech merely by labeling it disruptive. Moreover, the Brown Act specifically provides that “[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.” Cal. Govt. Code Section 54954.3(c).
A public meeting of a school board is considered to be a limited public forum for First Amendment purposes, and as such, a school district faces a substantial burden in justifying any content-based restrictions on speech of members of the public during the public comment portion of the meeting. Any limitations on content must be shown to be necessary to serve a compelling state interest, and must be narrowly tailored to achieve that goal. See Baca v. Moreno Valley Unified School Dist., 936 F.Supp. at 730. As you correctly note, in Baca, a California federal district court held that a policy prohibiting members of the public from criticizing school district employees was unconstitutional. A similar finding was made by another federal district court in Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (S.D. Cal. 1997). In light of this, a school district policy categorically stating that “comments regarding an individual will not be allowed in an open meeting” simply does not pass constitutional muster.
The agenda language also refers to section 54957 of the Brown Act, which allows for a closed session to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee, or to hear complaints or charges brought against the employee by another person or employee.” Although this section allows legislative bodies to hold closed sessions for the purpose of hearing and deliberating on specific complaints and charges lodged against an employee, I am not aware of any authority which would allow a public agency to use this provision to justify a policy prohibiting speech critical of an employee, and such a conclusion would be contrary to the law noted above.
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