No speech violation where Town Board cuts public comments out of livestreaming

This First Amendment case from Rockland County examines what happens when the Town Board does not make the public comment portion of its meetings available to the public on its live broadcasts. Is this a free speech violation?

The case is Potanovic v. Town of Stony Point, a summary order issued on June 25. When I covered municipal board meetings as a young journalist in the late 1980s, public comment sessions were not contentious. They have become more contentious in our polarized society. With the Internet, you can watch these meetings at home. All of this gives rise to this lawsuit. Plaintiff argues that, by closing out the public from his comments at the start of the meeting, his First Amendment rights are being squashed because this practice reduces the size of his audience: the people watching from home. 

The Court of Appeals (Livingston, Robinson and Kahn) holds this is not a speech violation. The Court sees things this way:

Potanovic’s First Amendment claim is best understood as seeking to compel the Town to create a limited public forum of the scope and character that Potanovic seeks—namely, broadcast online, recorded, and archived. If, hypothetically, the Town provided an opportunity for members of the public to address the Town Board in person on a separate day, untethered to the Town Board’s livestreamed legislative meeting, Potanovic would not have a First Amendment right to compel the Town to expand the limited public forum it thereby created beyond its defined scope by livestreaming the meetings just because the Town had the technology to do so. The fact that the Town’s public comment period is temporally adjacent to the Town Board’s (nonpublic) legislative meeting does not change this analysis.

The Second Circuit holds the Town Board's practices are not illegal because the public can still attend the meetings in person, and people can still address in-person audiences at the meetings. Plaintiff continued to speak at these meetings even after the Town Board shut off the live-streaming during the public comment sessions.