Free Speech and the Texas Open Meetings Act: Wide Open Country

“Do I have to sit here and take this?”

After a particular contentious city council meeting over a public golf course, during which insults about making sandwiches where hurled at a councilmember who happened to own a Subway sandwich shop, he asked me that question. Though sandwich making has nothing to do with the construction of a golf course, a citizen’s First Amendment right of free speech in a city council meeting trumped the politician’s discomfort. This was an example of democracy and the right of free speech intersecting with the Texas Open Meetings Act.

The courts have established different levels of protection for different types of speech. Core political speech is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Attempted restrictions must weather a strict scrutiny analysis.

Most cities place a “public comment” section or “open mic” item on the agenda whereby members of the public are usually given a short amount of time to express their concerns or views on any subject to the city council. While currently there is no requirement under TOMA for such public comment, once public participation or comment is permitted there is then created a public forum where the speaker is accorded First Amendment rights. Consequently, once such public comment is accorded, a city council may not then exclude a person from speaking simply because it does not like the topic or viewpoint.

While the First Amendment clearly states there can be no law that abridges freedom of speech, it does not create a right to communicate a person’s views at all times or in any manner that person desires. Further, federal courts have held there is a significant governmental interest in conducting orderly, efficient meetings of public bodies. A City may place limitations on the time, place and manner of speech as long as the restrictions are content neutral and narrowly tailored to serve a significant governmental interest and leave open ample alternatives for communication. What can a city prohibit in the public comment session?

Engaging in personal attacks can be prohibited if the attacks are a comment that is an insult directed at a person and not on a topic of discussion or leads to the real potential to disrupt the orderly conduct of the meeting. In our example above, if the topic was serving sandwiches at the golf course then the insult could be thrown; but if the topic was construction of the golf course the Subway insult could have been prohibited if the city had rules in place.

Fighting words can be prohibited. Indecent, profane or vulgar language is prohibited if it would cause the average person to fight (fact issue). That is a wide spectrum, especially in Texas. What may be offensive to one type of personality or community might not be determined offensive to another.

An obscene gesture that would invoke a reaction can be prohibited. However, a Nazi salute cannot. Wearing a Ninja mask cannot be prohibited. Wearing political buttons or t-shirts cannot be prohibited but signs and banners can. Imposing a lifetime ban from attending the meeting is prohibited.

There is no clear line in determining free speech rights in a city council meeting, but err on sitting there and taking it.