Is limiting a school board trustee’s comments legal?

Answer

As you may know, California’s Brown Act requires that “[e]very 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.” Gov’t Code section 54954.3(a).

A legislative body may adopt reasonable regulations to ensure that the intent of subdivision (a) 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.” Gov’t Code section 54954.3(b). But the legislative body “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 Gov Code § 54954.3(c).

Although the question of whether restrictions on public comment were permissible under the Brown Act have seldom been litigated, the Court of Appeal in 2008 held that a public utility district violated the Brown Act when it prohibited a member of the public from speaking during the public comment period about pending litigation, despite the fact that the Brown Act permits legislative bodies in some circumstances to go into closed session to discuss pending litigation. Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063 (2008).

In addition, as you note, First Amendment principles related to the content of speech at public meetings are also relevant here. The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996). Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld. In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). The district board meeting should fit into this “limited public forum” category since it is governed by the Brown Act and the Act’s regulations related to public comment. See Baca, 936 F.Supp. at 728 (open session of a school board meeting is a designated, limited public forum).

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45. Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988). Regulations related to public comment must also be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

In the situation you describe below, the board might argue that it has imposed a reasonable, content-neutral restriction designed to prevent repetitive comments (though even this rationale would not seem to cover a restriction on asking follow-up questions). Because there is relatively little guidance from case law and because the First Amendment analysis would be highly fact specific, it is difficult to predict whether a court would decide that the board’s actions had violated the Brown Act or First Amendment.

It sounds like it would be hard to enforce the restriction you describe without evaluating the content of a particular comment, which in itself may cast some doubt on the legitimacy of the restriction. Perhaps making the board aware of the legal authority outlined above might be of some use in ensuring that it abides by the requirements of both the Brown Act and the constitution.