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Transparency Talk: What You Can and Can’t Say at Government Meetings

Public comment periods might seem like a guaranteed right. But in Wisconsin, the law doesn’t always require government bodies to let you speak. In this episode of "Transparency Talk", Bill Lueders and open records attorney Tom Kamenick unpack the surprising rules that can limit public input at meetings. Feature contributor Ava Shumway brings us this week’s episode. But before we turn it over to “Transparency Talk,” our standard reminder that this conversation is not intended to be specific legal advice, but rather a discussion of general legal issues. If you have a particular legal issue, please consult an attorney.

Broadcast on:: 26 Sep 2024
Audio Format:: other

[music] Today is Every Other Thursday, which means it's time for Transparency Talk, a news program that you can see right through. I'm Bill Leaters, I'm the President of the Wisconsin Freedom of Information Council, a statewide group that works to protect access to public meetings and records. Joining me is the show's longtime star, Tom Kaminek, a member of the Council, as well as the founder and president of the Wisconsin Transparency Project, a law firm devoted to open government. So today we're going to talk about a particular aspect of open government in Wisconsin. Public comment periods at government meetings will walk you through what the law requires, as well as what it forbids. And the first point to make clear is that while most public bodies in Wisconsin, from village commissions to city councils to school boards, do allow members of the public to show up and speak at meetings, in most cases nothing in the law requires them to do so. Tom, you must hear on occasion, as I do, from citizens who are surprised to learn that they are not allowed to talk at a public meeting or that they're limited in what they can talk about. I do get those kind of calls, Bill, and I hate to tell them, but I have to do, that it is usually not required, like you said, and there's some limits that they can place on what can be talked about. So nothing in the meetings law says they have to have a public comment period, although there is one important caveat that some types of public hearings, like for budgets or for TIFF districts or for rezoning do need a public hearing. And that's a kind of special hearing where the public is always permitted to talk. So be on the lookout for those. But, you know, Bill, I think it is a really good idea for governmental bodies to have these comment periods. I think it's always disappointing when I read stories about your local city council decides to cancel those comment periods. So let's say that a public body allows for public comment. What sort of limits is that public body allowed to impose? This is actually a question of constitutional law. It's a First Amendment issue because when the government has a public comment period like this, they are creating a forum for public speech. And pretty much they're only limited to limitations of time, place and manner restrictions is what they're called. So very frequently you'll see like a three minute time limit on all speakers. That's fine. They can put limits on requiring that the people not disrupt the meetings by being incredibly loud or refusing to give up the podium. They can also put limitations on the topics, like you said, because they're creating what's called a limited purpose public forum, meaning they can limit it to specific topics. They don't have to let anybody do what they want when they stand up. They can say they can tell somebody who's just reading a poem for no particular reason, that they need to sit down and keep things on topic. That's okay too. And finally they can probably limit their speakers at their meetings to residents or taxpayers and maybe require you to state your name on the record or sign in on a sign in sheet if you want to speak, although they cannot require you to do that just to attend the meeting. The key is that they have to be consistent about the restrictions they impose. They can't impose some restrictions on some people and not on others. What kind of restrictions are they not allowed to impose? They're at the government. They are not permitted to discriminate for one thing. So you have your typical list of things you can't discriminate based on race, sex, religion, gender, all those kinds of things. But also one of the big ones that comes up for public forums is you can't engage. The government can't engage in viewpoint discrimination. So they can't say we're only going to allow people to speak in favor of the proposal we're about to vote on. And we're going to cut off people who are speaking against it. That's a big no, no. Then you get into what I call play nice rules, which are kind of in a gray area and oftentimes go over the line. So you get rules about the no harassment, no being mean, you have to be polite, no criticism, no addressing comments towards one person, no hate speech or nothing offensive. Those are usually going to be problematic because they are often too vague or too broad to actually be enforced. You get the question of what's the difference between criticizing Israel and anti-Semitic hate speech? Our general First Amendment jurisprudence says that government doesn't get to draw those kind of lines. I think it's pretty doubtful that your local school board will be talking about those kind of things. But that's just one example of where you get into problems trying to police speech and trying to make people be nice. And government really can't do that. That public meetings, the public under our meetings law is allowed to record the proceeding. They can video tapered or bring an audio recorder into the meeting as long as it's not disruptive, it's allowed. So I understand that nationally there's been some pushback and some court cases about vague rules when it comes to public comment. Yeah, I can share a few examples. I follow a blog called the Volok conspiracy and if you can write that down, it's V-O-L-O-K-H. Eugene Volok is a law professor at UCLA, probably the preeminent expert on First Amendment free speech in the country. And great to follow. And I see a lot of stories about this on his blog, which is hosted by Reason. Most recent example is one coming out of New York where their community school districts had a whole bunch of rules for public speakers saying you can't disrespect anybody. You can't engage in name calling or oppressive speech, no transphobic, and any other phobic, a whole list of phobic speech. I said you can't do that and a lawsuit filed against that. And a court ruled that that's just too broad and vague and we can't pick one side of a debate like that and say it's not allowed in our discussions. You have to be open to both sides of a topic that's being discussed. Another one I've seen, or actually I've got two more examples from one from Arizona and one from Iowa that both involved rules saying you can't call out individual employees or officials or no criticizing those officials. And one was a mom who was criticizing a pay raise for a school official. Another was an Iowa man who was criticizing an individual police officer who was on the payroll and both of them were arrested for their speech at the public meetings and filed lawsuits challenging those. Those lawsuits are still ongoing, but I expect that they'll come out in favor of the individuals trying to speak at public meetings. Looks like that's it for our time today. I'd like to thank Tom for his insights and Ava Shumway for producing this show. We'll be back two Thursdays from now. Remember, it's Transparency Talk, the news program that you can see right through. Thanks again for joining us, Bill, and don't forget everybody. If you don't ask, you won't know. (upbeat music)