The First Amendment

for Local Governments

Mark Flynn

General Counsel

Virginia Municipal League

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Back to 1791

1st Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The areas that apply to local governments

• Public forum doctrine– Traditional public forum– Limited / designated public forum– Non public forum

• Regulation of speech generally– Sign ordinances– Employees– Rules for governing body members– Prayer at public meetings

• Traditional public forum – speech on any topic• Town square• Sidewalks – may not impede pedestrian use• Reasonable time, manner & place restrictions – not on

content of the speech

Traditional public forum?• Protest on Capitol grounds – 2012 session of

General Assembly (Capitol steps not a public forum)

• Or are they?

Designated or Limited public forum

• Portion of council meeting where public comment accepted.– Public hearing– Public comment period

Speech limited to topic under consideration

During limited public forum portion of meeting

1st Amendment right does not extend to:– Disruptive speech – Steinburg case– Personal attacksHAMPTON — Hampton Mayor Molly Joseph Ward on Thursday

defended kicking former state lawmaker Tom Gear out of a City Council meeting on Wednesday, saying she had no choice but to enforce the council's rules.

Gear was forced to leave the meeting and charged with trespassing when he refused to stop demanding an answer to his question: When did Ward first learn about the Hampton Police Division's undercover cigarette operation?

"I believe it's my job as chair of the body to make sure that rules of protocol and decorum are followed," Ward said, saying Gear was out of order at the meeting. "I did my best to make sure that the rules of the body were followed.“ Daily Press, 10/11/12

• Council or other public body may/should set rules – time limits, non-repetitive.

Non-public forum

• Most of council meeting not a public forum– Public has right to attend and right to be quiet

• Public buildings – generally a non-public forum

Other free speech issue at meetings

• Prayer at public meeting?– Government speech – 4th Circuit has repeatedly made rule clear – no

religious-specific prayers– Attorneys fees a practical risk– What about a Wiccan? Nope– But wait! US Supreme Court to hear Greece,

NY v. Galloway. Could overturn 4th Circuit.

Why can’t we be friends?• Disruptive council members

– Council may not restrict a councilor’s speech based on the position he or she takes

– May discipline a member for disruptive speech, personal attacks (time, manner & place restrictions – content neutral)

§ 15.2-1400.D. A governing body may punish or fine a member of the governing body for disorderly behavior.

Other free speech issues• Arlington sign ordinance

Wag More Dogs, LLC v. Cozart

Bye-bye pooches

Up in smoke?• Arlington head shop after Wag More.

Blunt repainted to whale “We don’t sell whales”

• Town of Cary, NC sign ordinance – town ordinance upheld by 4th Circuit.

• Lexington, VA street bannersCity passed rule to make street a non-public forum. Upheld by 4th

Circuit.

Public employees’ right to speech

• May not discipline for speech on matters of public concern – Pickering v. Board of Ed., 391 U.S. 563, 88 S. Ct. 1731 (1968).

• must be on a matter of public concern, and the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to the ‘interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’

Mark Flynn

General Counsel

Virginia Municipal League

mflynn@vml.org