The First
Amendment
for Local
Governments
Mark Flynn
General Counsel
Virginia Municipal League
• L.A. City Council discusses medical
marijuana
Anaheim City Council
Council meeting closed by fire marshal. Protest of shooting
of citizen
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 attacks
HAMPTON — 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 banners
City 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