The First Amendment and public meetings: It’s complicated.

August 12, 2021 6:20 am

The First Amendment gives broad powers of speech to anyone. But in public meetings, that speech can be limited. As long as it’s not limited by only letting one point of view be heard. (Image by 정훈 김 from Pixabay)

On June 24, the CCSD Board of Trustees meeting was delayed several times by disruptive behavior, heckling and verbal threats, which created, for many people, an atmosphere of hostility. 

At the next Trustee meeting, on July 8, Trustee Lola Brooks laid the blame for the prior meeting’s disruption at the feet of board president Linda Cavazos.

Her admonishment was, hands down, the best audition I have ever seen for a reboot of “Mean Girls.” But it got me thinking, what are the limits of speech in a public meeting? What are the limits of speech at all? And, does tone matter?

Also, was Brooks correct? Despite the nasty tone, did what she say hold up to fact checking?

To find those answers, I set out to talk to First Amendment experts.

One of the things I have discovered over the years is that First Amendment experts are incredibly enigmatic. Their favorite answer is, “It depends.”

The First Amendment guarantees the right for people to peaceably assemble or speak or exercise their chosen religion. A lot that is up to interpretation.

Perhaps not surprisingly, this wide interpretation goes to the heart of what the board was discussing on June 24 – an anti-racism policy. And the interpretation of “peaceable assembly” is, as we have seen in the last year, different for peace officers depending on who’s assembling.

Let’s add that for public meetings, speech is not the same as it is, say, on a street corner. 

“It’s speech, but it’s still a limited public forum,” said Rosalie Bordelove, the chief of the Boards and Open Government Division for the Nevada Attorney General’s Office. For instance, someone could not sign up for CCSD board public comments and talk about highway repairs. Or fire department funding.

They also can be disallowed from saying anything from the audience when it’s not their turn to speak.

“If it’s not during the public comment period, then it’s not allowable” speech, Bordelove said. It’s important to note here that she didn’t say heckling was automatically punishable. It is just one thing the chair of the meeting can decide not to allow and still not be abrogating someone’s speech rights.

That’s all in the Attorney General’s open meeting law manual, which Bordelove oversees. Page 83. In case you click through.

So, the First Amendment gives broad powers of speech to anyone. But in public meetings, that speech can be limited. As long as it’s not limited by only letting one point of view be heard.

Public comment vs. heckling

“You can’t allow one side of the room to applaud loudly and then admonish the other side when they are heckling people,” Brooks told Cavazos on July 8.

The experts I talked to don’t exactly agree. Specifically, they don’t necessarily see applauding and heckling as the same thing.

“I don’t think you want to say ‘no applause’,” in a public meeting, said Gene Policinsky, a First Amendment expert from The Freedom Forum. But, said Policinsky, you can limit “conduct that disrupts the meeting.”

There were two kinds of speech being exercised in the June 24 meeting: people speaking at the podium during agendized public comment, and people speaking from the audience AT the people who were speaking at the podium. The six attorneys I talked to emphasized that at the podium, during public comment that is on the agenda, there is no limit to speech.

“If it’s your turn to talk, you can say anything you want,” said Marc Randazza, an attorney based in Las Vegas and Massachusetts.

Every lawyer I talked to mentioned “time, place and manner” restrictions. In this case, the time of the board meeting was set, and the time of public comment was limited to 1 minute, 30 seconds. The place was the CCSD board room. And the manner was restricted to signing up for public comment, having your name called, and going to the podium to speak.

As Bordelove noted, a public body absolutely has the right to say that the “manner” of speech cannot come from audience members speaking out spontaneously.

So, applause and heckling aren’t the same thing. What Brooks was trying to say is that the chair needs to be balanced in her rulings. I’ll give her the benefit of the doubt that her wording came out wrong. I’ll give her a 5 out of 10. Half true.

Threatening speech and fighting words

“…people do have freedom of speech, even horrible speech. The Supreme Court has upheld this numerous times. The claim you are making is a disturbance,” Brooks told Cavazos on July 8.

The conduct that disrupted the June 24 CCSD meeting included words hurled at people that were meant to do damage: fag**t, wetback, n***@r, “go back to your country” (said to someone who had just explained she was from Hawaii, which was colonized against its will). When one mother was talking about trans kids, one man yelled, “keep them away from me and my kids.” Was that a threat? At one point, an audience member who just graduated law school came up to the podium with a limp. The same man – who was there to protest the anti-racism policy – snarled, “I’ll give you something to limp about.” Yes. That was a threat.

When I mentioned that last incident to Bordelove, she hesitated. “Just because something isn’t in the open meeting law doesn’t mean other prohibited speech doesn’t apply. The fact that it was said at a public meeting doesn’t exempt him from the criminal behavior.”

Randazza was not as circumspect: “Drag him out! Drag him out by his hair!”

Threatening speech, then, is not allowed. But how do you define threatening?

“I’m going to get you after this meeting” is a true threat, said Policinsky. “I hope a meteor smashes you and your family” is not a true threat.

Policinsky notes that assault is not a physical act – that would be battery. Assault “is putting a person in fear of being physically injured,” and if speech in a public forum stops other people from attending that forum or getting up to speak, “then it violates the First Amendment.”

The “I’ll give you something to limp about” line was clearly intended to put the speaker at the podium in fear – or put others in fear of going up to the podium. The “keep them away from me” line could also be seen as a threat to trans kids and their parents, who might stay away from future meetings.

I should note that the Supreme Court has also ruled that sexual harassment is not protected speech. Arguably, both of the examples above fit into that definition.

It’s complicated, though, by how we as a society have reacted to this kind of threatening speech. How many of us have heard something like that from a boy or group of boys in our class, and were told by the teacher, “It’s just talk. Ignore it.”

This is where the First Amendment is murky. Is it a threat, which is not allowed? Or is it bullying speech, which is?

Erwin Chemerinsky, dean of Berkeley Law School, noted that in this case, in a school board meeting, time, place and manner restrictions play a role.

“I can say in my classroom, ‘anyone who uses a slur or epithet will be kicked out.’ But I can’t prohibit that within the building or on message boards,” Chemerinsky noted.

So, board president Cavazos can provide a list of slurs that cannot be expressed?

Chemerinsky’s answer is… it depends.

“I don’t think there’s a clear answer to it. I think they can certainly try and see what the courts say, given those words are certainly hurtful.”

So, people are not allowed to disrupt a public meeting. But, they also aren’t given carte blanche on horrible speech during a public meeting. True threats are not allowed – even if the people on the dais can’t hear them. I’ll score this a half-truth by Brooks.

Making the call

One of the admonishments Trustee Brooks gave to Trustee Cavazos is “you need to point out who needs to be escorted out, because the police don’t have the discretion to do that, and that has always been the case.”

That’s not necessarily true. The First Amendment experts I spoke with all said that the chair can deputize someone or a group of people to police the audience and throw out people making threatening speech or just disrupting. How much power do the crowd monitors have? Nobody quite agrees.

Most say the monitors, thus deputized, can simply pull out of the room someone who is making threatening speech, or just heckling after being warned not to, without having to get specific permission from the chair.

“They could say at the beginning of the meeting, the police are here… and we authorize the police on our behalf to remove them,” said Daniel Stewart, who was chief counsel to former Gov. Brian Sandoval.

Randazza agrees, but he wants to make sure that the blanket permission was given, and the throwing out is the last resort. He’d like to see a system that is something like soccer officiating. “Yellow card and red card, then a hearing for the future.”

Bordelove disagrees. She noted her expertise is in open meeting law, not First Amendment law. But from her vantage point, the ultimate decision has to come from the chair. The police or crowd monitors can say to the chair, “this person” and the chair can say, “yes.” But, in Bordelove’s view, the crowd monitor must get permission before kicking someone out.

Importantly to Trustee Brooks’s point, all the lawyers I talked to agreed the chair doesn’t have to initiate the conversation about kicking someone out. That can come from whoever is monitoring the audience. And that doesn’t just have to be for disruption. It can also be for a threat.

Bradley Schrager, who is an attorney who works on government issues, but also noted he is not a First Amendment lawyer, pointed to the fact that trustees at the June 24 meeting couldn’t hear the threatening and non-threatening comments coming from the audience. In that case, the chair “has to have the power to control the space for people’s safety, and that power can’t be limited to her walking around listening for things. That’s absurd.”

So on this point, I’m giving Brooks a 3. The chair absolutely has to have control of the meeting, but she can deputize people to monitor heckling and threatening speech, and then, either make a decision about kicking them out, or make a decision about whether the monitor needs to ask the chair for permission.

I should note that Cavazos actually did give an order to expel anyone heckling on June 24. Four CCSD police officers came in after she gave that warning, and stationed themselves around the room. Within two minutes, they were gone. As if their job were to stand in the lobby.

The bottom line

While threatening speech is not allowed – even at the podium – Stewart posits that boards might do well to let them speak till their time is up. “Sometimes it’s better to allow people to feel like they’ve had their say and lose than feel like they haven’t gotten to say anything at all.”

People also may feel heard if they had more time to speak to begin with. People seem to have a rhythm of about 2 minutes – which is what public comment used to be.

It also might be helpful to not just have a beep when your time is up, but also a beep 15 seconds before your time is up. So people feel warned.

The next meeting, August 12, will take place at the County Commission boardroom. Cavazos said that’s because the County Commission has metal detectors.

That, more than anything, is an indication to me that the board and the audience feel threatened by the speech at the last couple of meetings.

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Carrie Kaufman
Carrie Kaufman

Broadcast, digital and print journalist Carrie Kaufman writes the You're Overthinking It newsletter on Substack. She has covered the Clark County School District for public radio and The Nevada Voice since 2015. Follow Carrie on Twitter: @CarrieKaufman