It’s often been said that democracy is messy, but public comment sessions at school board meetings have become especially contentious in recent years. Normalization of harsh discourse in the public arena, consequence-free spread of misinformation on social media, built-up frustration during the COVID-19 pandemic, ongoing “culture war” issues like sex education and diversity curricula, and the otherwise-laudable decision of many school boards to televise their meetings, have all contributed to rising temperatures in board meeting rooms across the country.
The public’s right to express concerns to government officials is enshrined in the First Amendment to the U.S. Constitution, but there is much misunderstanding about the outer limits of that freedom, and in particular what those limits are at public school board meetings. “Free speech!” has become the rallying cry of those who believe (wrongly) there’s an inalienable constitutional right to say anything you want, whenever and wherever you please, about whatever or whomever you choose. This article will explain the basic ground rules our courts have developed to protect a public body’s ability to conduct its business in an orderly manner while also honoring the public’s right to be heard.
The Forum Matters The legal ground rules for free speech on government-controlled property, like school board meeting rooms, vary depending on the setting involved. To sort this out, our courts employ an analytical tool called “forum analysis.” Under this legal framework, the public has greater freedom to speak the more closely the venue resembles the public square where citizens traditionally assembled to debate the issues of the day. At one end of the spectrum is the “public forum,” areas like streets, parks and other spaces where, historically, the public is accustomed to relatively unfettered expression by leafleters, protesters and others sharing their views on matters of concern. Passersby are free to stop or continue on their way. At the other end of the spectrum are gatherings like school plays or concerts, where attendees are a captive audience with no expectation of being blindsided by someone using the event as a personal soapbox for their opinions on political or social issues.
In between is the “limited public forum,” where government convenes a meeting or event for a specific purpose but allows at least some opportunity for the public to express themselves. Our courts have held that school board meetings with public comment sessions fall into this category. Their primary purpose is for board members to discuss and vote on board business, but the public is afforded a limited opportunity to be heard during the meeting.
Interestingly, the First Amendment protects the public’s right to attend school board meetings but does not guarantee the right to speak during them. That right comes from New Jersey’s Open Public Meetings Act. The original version of the law, adopted in the 1970s, did not require any public comment session but was revised, in 2002, to require municipal governing bodies to have one at each meeting. The law was revised again, in 2008, to extend that mandate to school boards. Once the door was opened to public comment, any restrictions on the public’s speech were now governed by our courts’ well-established forum analysis.
Under the constitutional guidelines for limited public forums generally, school boards may regulate decorum, and the general subject matter of public comment sessions. Boards may set a maximum time per speaker, and a time limit for the entire public comment session. Subject to some conditions discussed below, boards can prohibit abusive or profane language having no purpose but to threaten or intimidate. Boards also can restrict public comment to a particular agenda item or to agenda items generally, as long as the public is afforded another opportunity elsewhere during the meeting to speak on other matters of concern to them. Our courts refer to these as “content-based” restrictions, which are permissible so long as they do not discriminate against speakers based on the popularity of the particular viewpoints expressed.
Are there limits to what topics the public can speak about? The sentence in the Open Public Meetings Act requiring public comment sessions states that they are intended for “governmental or school district issue[s] that a member of the public feels may be of concern to the residents of the municipality or school district.” A reasonable reading suggests that private, personal grievances of no conceivable relevance to the school community, like dissatisfaction with one’s divorce settlement or the Jets quarterback depth chart, can be disallowed, though boards would be well advised to construe the OPMA liberally since relevance can be subjective.
What about speakers who attempt to take over the meeting to press their own agenda? In a 2010 decision involving a Mercer County school board meeting, the New Jersey Supreme Court held that “[a] public body may control its proceedings in a content-neutral manner by stopping a speaker who is disruptive or who fails to keep to the subject matter on the agenda, . . . or whose speech becomes irrelevant or repetitious. [T]he First Amendment does not require the presiding officer of a public meeting to sit idly by while a speaker attempts to hijack or filibuster the proceedings.”
What are some examples of viewpoint discrimination that have gotten school boards in trouble? The most frequent one is cutting short a speaker whose comments are critical of the board, or limiting those speakers to their allotted time while permitting others to ramble on longer. Another form of viewpoint discrimination would be allowing board-friendly speakers to ask questions and receive answers from the dais, while denying that opportunity to the board’s critics.
Are there any limits to how nasty or aggressive a speaker can be? Our courts have repeatedly held that speakers at school board and other public meetings are generally within their rights to make “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” But that line is crossed when speakers hurl obscenities, threaten violence, or attempt to take over the meeting by speaking beyond their allotted time, interrupting the proceedings from the audience, or otherwise disrupting the orderly conduct of the board’s business.
What constitutes unacceptably vulgar language is not clear from our court decisions. One factor courts consider is whether the profanity or other offensive language is rhetorically relevant to the point being made or is uttered solely to threaten or intimidate. Here we must distinguish between what a board may shut down during the course of a meeting, and what can subject a speaker to prosecution under New Jersey’s criminal statutes prohibiting disruption of public meetings or the using of profanity in public places.
In a criminal case from the 1970s involving a public meeting in a school auditorium to discuss racial conflicts in town, a speaker proclaimed that if whites didn’t do something about the problem, “then the motherf…… ing town, the M.F. county, the M.F. state and the M.F. country would burn down.” Our State Supreme Court upheld his acquittal because, in context, the comment was political hyperbole to drive home the speaker’s socially-relevant message, and could not have been reasonably construed as a true threat of violence. On the other hand, a New Jersey federal court judge recently upheld a Monmouth County school board’s right to prohibit language that was much tamer (“whatever the hell,” in that case) during its public comment sessions. It’s fair to say the outer limits of permissible profanity are still evolving, as society itself keeps pushing that limit further outward. The more prudent course is to appeal to the speaker to dial down the language rather than gaveling him into silence.
Say a member of the public wants to speak on the reappointment of a popular staff member the superintendent is thinking of nonrenewing, or the disciplinary consequences for a student terrorizing the district with threatening social media posts. Can the board prohibit the comments because the Open Public Meeting Act would forbid board members themselves from discussing such matters publicly? The answer is no. The law limits what the board can discuss publicly but does not address what the public can discuss when it’s their turn. That’s not to say the public can speak on these matters with complete legal impunity. Even if the board can’t preemptively stifle citizens’ comments on such matters, they speak at their peril.
Defamation law allows a fair amount of inaccurate mudslinging if the targets are high-ranking government officials and other public figures, who are expected to withstand even uninformed public criticism. Lower-profile public employees and private citizens enjoy much more legal protection from false statements or invasions of privacy. Speakers who are unaware of these nuances in the law may find themselves facing a civil suit for damages if their public remarks violate the rights of a rank-and-file district employee, a parent, a student or another member of the community. For that reason, some boards open their public comment session with an appeal for civility, a reminder that speakers may face personal liability if their comments violate the rights of others, and a suggestion that speakers seek independent legal advice if they’re unsure of the legal ramifications of their comments.
Do district employees have the right to criticize the board or the administration during public comment? Yes, if they do so in their capacity as private citizens regarding matters of general public concern. Under a line of U.S. Supreme Court decisions, it’s possible those employees may later face disciplinary consequences if their comments disrupt a close working relationship with a supervisor they’re criticizing, but that does not give the board the right to stop them from speaking at their own risk.
Can the public be subject to criminal prosecution for physically disrupting a board meeting? Yes. The New Jersey Criminal Code, N.J.S.A. 2C:33-8, provides: “A person commits a disorderly persons offense if, with purpose to prevent or disrupt a lawful meeting, procession or gathering, he does an act tending to obstruct or interfere with it physically.” The comments to the legislation state: “As noted, the section is limited to physical interference.” That is not to say that speech could never be physically disruptive; where an actor’s speech was intended to make it impossible for the person addressing the meeting to be heard, it would constitute a physical obstruction. Similarly, if a person with no privilege to speak in a meeting repeatedly interrupted it, he might well be in violation of the section whatever the content of his speech.
Public comment sessions should be an opportunity for the public to express themselves on controversial issues. Passionate advocacy is welcome but, as experienced board members know, the most compelling and successful arguments from the public are those presented in a clear, concise and straightforward manner, backed up by evidence and logic. Threats, intimidation and disruption are not only childish but usually accomplish the exact opposite of what the speaker seeks to achieve. Hopefully, the guidelines shared above will help boards run their meetings within the bounds of the law, with due respect for the public’s right to be heard.
David B. Rubin is of counsel to the Busch Law Group.
