Court affirms speech restriction at public meetings

You'd be surprised at how many lawsuits arise from free speech disputes at public meetings, like town and school board meetings. You have speech rights at these meetings, but the public officials have some leeway in regulating that speech. This case illustrates that dynamic.

The case is Cipolla-Dennis v. County of Tompkins, a summary order issued on April 27. Plaintiff, a community resident, wanted to speak at the County Legislature's public safety committee meeting about a County personnel matter. The committee denied her the opportunity to do this, as plaintiff refused to sign the "blue card" which requires that speakers agree not to speak about County personnel matters, which are normally matters for the Legislature in executive session. 

Public meetings are limited public forums, which means you have fewer speech rights than full public forums, such as sidewalks and the proverbial town square. In a limited public forum, the government can restrict the content or subject matter of your speech, but it cannot allow some viewpoints over others. Plaintiff says the blue card rule is not viewpoint neutral and is therefore unconstitutional. But the Court of Appeals (Livingston, Lynch and Lohier) disagrees, affirming the district court's summary judgment in favor of the County. The personnel policy does not single out any subset of views for exclusion. Rather, it prohibits discussion of all personnel matters, i.e., the job performance of County employees other than elected officials. Even if you want to praise someone's job performance, you can't do so at these public meetings. That means the rule is viewpoint neutral.

Plaintiffs can also win these cases if the speech restriction is not reasonable in light of the scope and purpose of the limited public forum. Plaintiff loses that argument, the Court says, because that speech policy is reasonably related to the Legislature's interest in confining matters that are addressed during public comment matters that are within the Legislature's purview. In 2003, the Court of Appeals held as such in Prestopnik v. Whelan, 83 Fed. Appx. 363 (2d Cir., 2003), and it reaffirms that reasoning in this case.