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Published: 10/24/24

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Part 1 of this series discussed the spread of misinformation and threats on social media. This post will analyze misinformation and threats at public meetings, particularly during public comment periods. What can a local government do when misinformation is shared or threats are made in public meetings? How can a local government respect and uphold the First Amendment rights of citizens while also addressing dangerous rhetoric and protecting government officials and employees? This blog post answers questions about these topics.

For a full examination of the First Amendment as it relates to misinformation and threats, please see Part 1 of this series. As a quick summary, the First Amendment generally protects misinformation and false speech, though courts have upheld various restrictions on false speech in cases involving defamation, common-law fraud, false or misleading advertising, or speech “integral to criminal conduct” (see this blog post for more detail on the last category). The First Amendment does not provide any protection for true threats of violence or incitements to violence. State v. Taylor, 379 N.C. 589, 605 (2021); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

With this framework in mind, let’s examine how local governments can handle misinformation and threats communicated during public meetings.

What policies can city and county governing boards adopt for public comment periods?

Public comment period policies must comply with both state law and with the First Amendment. Statutes empower city and county governing boards to adopt public comment period rules setting a time limit, providing for spokespeople or delegates, and providing for the maintenance of order and decorum. See G.S. 153A-52.1 (counties); G.S. 160A-81.1 (cities). These boards must be able to tie their policies to a statutory category of authorized public comment period rules. There is no authority to adopt public comment period rules outside of these categories. Boards may adopt public comment period rules as part of their local rules of procedure or as a separate policy. Regardless of the format, boards should formally adopt their public comment period rules by majority vote. It is also a best practice to make these rules available to the public in advance by announcing them, posting them in the meeting room, or posting them on the local government’s website.

Public comment period rules must comply with the First Amendment. The Fourth Circuit Court of Appeals, which issues decisions that are binding on federal courts in North Carolina, generally considers public meetings (including public comment periods) to be limited public forums. See Davison v. Rose, 19 F.4th 626, 635 (4th Cir. 2021); Steinburg v. Chesterfield County Planning Comm’n, 527 F.3d 377, 385 (4th Cir. 2008). (However, the public comment portion of a public meeting could become a “designated public forum” if the governing body opens the floor to all types of speech without imposing any restrictions on the topics that may be discussed or on who may speak). Government restrictions on speech in limited public forums must be viewpoint-neutral and reasonable to pass constitutional muster. Viewpoint-neutral policies do not discriminate based on the speaker’s perspective or opinion. Policies are considered “reasonable” if they support a legitimate government objective, are clear, and are capable of consistent application.

Any actions taken to limit speech must be consistent with and clearly tied to an existing, constitutional policy. Even if a policy appears viewpoint-neutral and reasonable as it is written, boards must also apply the policy in a reasonable and viewpoint-neutral manner. If it is clear from board members’ statements and behavior that they are targeting speech because it expresses a viewpoint they disagree with or disfavor, the board’s actions could be considered unconstitutional, even if the applicable policy is perfectly legal on its face.

Can local governments adopt policies specifically about misinformation or personal attacks during public comment period?

A policy prohibiting misinformation might fall within the statutory category of providing for the maintenance of order and decorum, but it is probably unconstitutional. As noted above, the First Amendment generally protects false statements. Moreover, it is unlikely that a policy prohibiting misinformation would be considered “reasonable” by a court, because it would not be clear or capable of consistent application. While misinformation is generally understood as false or inaccurate information, there is no universally accepted definition. As a result, prohibiting misinformation would embody the kind of subjective and overly vague policy that the First Amendment forbids. See e.g., Minnesota Voters Alliance v. Mansky, 585 U.S. ___(2018). With diverging definitions of misinformation, there is a significant risk of inconsistent or arbitrary application of the policy, which also poses a First Amendment concern. For these reasons, local governments should not attempt to prohibit or interrupt misinformation shared during public comment periods.

Still, local governments’ existing policies may limit misinformation in two significant ways.  First, the Fourth Circuit Court of Appeals has upheld policies that limit comments to matters within the power of the applicable public body. See e.g., Davison v. Rose, 19 F.4th 626, 635 (4th Cir. 2021).  For example, if a commenter begins to spread misinformation involving the federal government or state actors, a city or county governing board may potentially disallow the comment for being about matters outside the jurisdiction of the city or county. To be clear, the board cannot limit the comment because it is false or inaccurate—only because it violates a policy requiring relevance to city or county authority. It is imperative that boards have constitutional policies and that they apply these policies consistently.

Second, the Fourth Circuit has also upheld limitations on personal attacks against identifiable individuals in public meetings. Davison, 19 F. 4th at 635; Steinburg, 527 F. 3d at 387. Consequently, if an individual’s comment at a meeting includes personal attacks or targeted insults against an individual, a city or county governing board may disallow the comment as a violation of its comment policy. Such an action should be based on a clear comment policy that is consistently applied in a viewpoint-neutral manner, rather than being made on an ad hoc basis. If the insult or attack meets the legal definition of a true threat or incitement to violence, the comment is simply not protected by the First Amendment at all—regardless of whether or not the board has a prohibition against threats in its comment policy.

Can governing boards of local governments stop holding public comment periods altogether?

For city and county governing boards, the answer is generally “no.” City councils are required to hold a public comment period once a month at a regular meeting. G.S. 160A-81.1. That means that if a city council holds one regular meeting every month, that meeting must include a public comment period. However, if a city does not hold a regular meeting during a particular month, it does not have to schedule a regular meeting for the sole purpose of holding a public comment period.

Boards of county commissioners are required to have a regular meeting each month under G.S. 153A-40(a) and are required to hold at least one public comment period per month at a regular meeting. G.S. 153A-52.1. That means that if counties have only one regular meeting per month, that meeting must contain a public comment period. If they have more than one regular meeting per month, only one of the regular meetings must contain a public comment period. Like the city statute, the county statute makes clear that if there is no regular meeting during a month, the county is not required to schedule a regular meeting just to provide a public comment period.

Taking those statutes together, city and county governing boards are rather constrained when it comes to eliminating or limiting the opportunity for public comment. The same would be true of other local government boards that are required to have public comment periods, like local school boards. G.S. 115C-51. Local appointed or advisory boards that choose to hold public comment periods have much more freedom to cancel those periods, since they have no statutory requirement to hold a public comment period in the first place.

What measures can local governments take to correct misinformation shared during open meetings?

Local governments need not leave misinformation unaddressed. Board members may respond to misinformation following the comment period. Boards should not attempt to make these corrections during the public comment period itself. While no law necessarily prohibits board members from responding to comments during the public comment period, as a best practice, board members should avoid taking time reserved for the public due to efficiency and fairness concerns.

For meetings that are livestreamed and posted online, local governments can place a text disclaimer providing accurate information and resources. They might also consider placing a visual banner on the video containing accurate information or links to resources. This banner could remain throughout the video or could appear only during the section with misinformation. Another option is to create a resource page on a local government’s website that addresses prominent false rumors and corrects them by providing accurate information and resources.

What can local governments do when meetings become unruly?

Local governments have a couple of options for managing unrest at meetings: i) they can eject disruptive individuals, and ii) they can recess the meeting altogether.

As a threshold matter, members of the public need a board’s permission to speak at a board meeting outside of a public hearing or public comment period. As the North Carolina Court of Appeals recently clarified, the open meetings law does not provide a right to be heard—only a right to access an open meeting. Umstead Coalition v. Raleigh-Durham Airport Authority, 275 N.C. App. 384, 400-401 (2020). In fact, the open meetings law provides that “[a] person who willfully interrupts, disrupts, or disturbs an official meeting…” is guilty of a Class 2 misdemeanor if they willfully refuse to leave the meeting after the presiding officer directs them to do so. G.S. 143-318.17. Under this section, a presiding officer may direct any disruptive person, including a fellow board member, to leave the meeting. If the individual refuses to do so, the presiding officer may involve law enforcement. A trespass charge could also be appropriate, as explained in this post.

No North Carolina case has determined just what constitutes an interruption, disturbance, or disruption under this statute. Arguably, the behavior at issue must materially impair the board’s ability to conduct business, such as yelling, banging on furniture or walls, or speaking over the board members. Note that a local government may only act upon this behavior outside the  sanctioned time for public comment. In other words, as long as a member of the public otherwise complies with applicable public comment period policies, yelling, speaking aggressively, or banging on a podium likely are not disruptions during their opportunity for comment. As a result, someone complying with applicable public comment rules generally will not be considered a disturbance under G.S. 143-318.17 even if the content of their comment is angry or aggressive. Importantly, G.S. 143-318.17 is not an appropriate mechanism for censoring undesirable speech, but it can be used if someone’s behavior is materially impairing the conduct of a meeting, apart from the content of their speech.

In addition to removing disruptive individuals, default principles of parliamentary procedure allow boards to recess meetings upon an appropriate motion. Recessing a meeting means pausing a meeting and resuming it at a different time, date, or place, rather than adjourning the meeting entirely. To recess a meeting, board members should make a motion to recess stating the time, date, and place of the resumed meeting and pass it by majority vote. The board should then ensure that the time, date, and place of the recessed meeting are posted on the local government’s website. G.S. 143-318.12(e). Recesses may be helpful when there are widespread interruptions or disturbances during a meeting, when discussions become counterproductive, or when a meeting breaks out into physical altercations.

Conclusion

Local governments likely cannot prohibit or limit misinformation during public comment periods, unless the misinformation otherwise violates existing constitutional policies. However, local governments can prohibit personal attacks and threats against individuals in public meetings, and boards can remove disruptive individuals or recess entire meetings if a meeting becomes particularly unruly. Local governments can also address and correct misinformation by promptly providing accurate information and resources.

This blog post is published and posted online by the School of Government for educational purposes. For more information, visit the School’s website at www.sog.unc.edu.

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