First Amendment Permits Limit on Comments at City Council Meetings to Agenda

A Federal District Court in Connecticut recently ruled that the Middletown Common Council did not violate the First Amendment when it passed a resolution limiting speech during televised Council meetings to items on the agenda. Smith v. City of Middletown, 2011 WL 3859738 (D.Conn. 2011).

Prior to October 2006, the Council reserved the beginning of Council meetings for the public to speak on topics not on the meeting agenda. This segment of the meeting devoted to non-agenda items was televised. In October 2006, the Council unanimously voted to change the Council meeting format to move the segment on non-agenda items to the end of the Council meeting and to not televise that segment. Members of the public were still allowed to address the Council regarding items on the agenda during the regular Council meeting, which continued to be televised.

In 2009 the Council voted again to alter the format of the Council meetings by terminating the segment on non-agenda items. In its place, the Council began holding monthly meetings at different locations in the community where member of the public could discuss issues not included on the Council meeting agenda.

Following the 2009 format change, Lee Smith and Donna Gagnon-Smith sued the Council claiming that the rule changes were intended to limit their free speech rights under the First Amendment of the Constitution. The Smiths regularly spoke before the Council on non-agenda items and even one Council member admitted that one of the reasons for changing the format of the Council meetings was to “turn off the cameras” for “a couple” that spoke before the Council “all the time.”

The Federal District Court of Connecticut reviewed the actions of the Council under the rules governing limited public forums. The Ninth Circuit has similarly held that city council meetings are limited public forums. White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). In a limited public forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral. Applying this test, the Connecticut court held that the Council was entitled to restrict public comments at Council meetings to topics on the agenda, because an individual’s viewpoint does not affect whether they are permitted to speak. The court also held that the fact that the Council may have been motivated to institute the format change to restrict the Smiths’ speech is irrelevant, because the rule actually passed by the Council was viewpoint neutral. See Hill v. Colorado, 530 U.S. 703 (2000). Therefore, the court held that the Smiths had not suffered a deprivation of their First Amendment right to freedom of speech and dismissed the action.

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