Freedom of Speech

Freedom to Speak Is Not Unlimited

By Marian L. Faupel
FAUPEL, FRASER & FESSLER
Ann Arbor, MI
2010


People often misconstrue the First Amendment to the United States Constitution. While this Amendment certainly grants us freedom of speech, that “freedom” can be regulated by the government. For example, a city can require a parade permit or other permits when large crowds are expected. The city can also limit comments at a public meeting.

In fact, MCLA 15.263(5), a provision in Michigan’s Open Meetings Act, provides that “[a] person shall be permitted to address a meeting of a public body under rules established and recorded by the public body. The legislature or a house of the legislature may provide by rule that the right to address may be limited to prescribed times at hearings and committee meetings only.”

Most city councils, township boards, and school boards have a policy of establishing an agenda of issues to be discussed at the meeting. The agenda is compiled at least a week before the meeting in most cases, and anyone wishing substantial time to address the board/council or provide written materials must request permission to be put on the agenda. Even though permission is required, the council/board has no obligation to grant permission.

Most boards/councils have a “public comment” section at each public meeting. For some, this section occurs at the beginning of the meeting and is typically 3-5 minutes per speaker. Some boards/councils, however, have many people wishing to make public comments, and this section of the meeting can last for hours if there are many speakers present (even with limits on the length of comments). To solve this problem, those boards/councils sometimes put the public comment section of the meeting at the end, hoping that few people will stay that long. This is still legal although it may mean that those comments must be made at midnight.

I recall years ago when a woman who attended Ann Arbor City Council meetings on a regular basis objected strongly to limits on her comments. She cleverly decided to write out her comments and then divide them into 3-4 minute segments. Then, allegedly, she recruited homeless people to each reach a segment at the meeting in return for a small payment. This certainly violated the spirit of the policy limiting speakers.

In Lysogorski v Bridgeport Charter Township, 256 Mich App 297 (2003), a plaintiff sued after being prevented from speaking at a township meeting after the time for public comment had expired. The Court of Appeals upheld the dismissal of his lawsuit, holding that the Open Meetings Act clearly authorized the Board to limit public comment to a specific time during the meeting and a specific length of time.

Likewise, many newspapers limit editorial pieces and letters to the editor to a certain number of words and further prohibit ad hominem attacks in many cases. While newspapers are private, not public, and therefore not technically subject to the First Amendment, they have limited resources which affect the forum that is available, similar to the issues with which boards and councils contend.

With the growing popularity of Tea Party rallies and concern about resolutions to lay off teachers, reduce public services, increase taxes, and/or increase the role of government in our lives, many people are seeking redress. The obvious way to be heard is to attend a board or council meeting and to speak publicly there, especially if the media is present. Protesters are already angry in most cases, and limiting their speech at a meeting is likely to increase anger. An obvious solution is to make town hall meetings available where the primary purpose is to receive public comment. If there is a “quorum” of the board or council present, this meeting would also be subject to the Open Meetings Act; however, the board or council can waive any limits on comment or expand the time available to each speaker.