Hydraulic fracturing (“fracking”) may be coming to Pleasantville. The community is deeply divided about it. A majority of the town council strongly favors this opportunity to bring jobs to the area. The board has met with representatives from Extraction Services, Inc. and has reserved time on this month’s regular meeting agenda for a presentation by the company. The company will use this opportunity to advocate against the adoption of restrictions that might increase the cost of their operations. A community group has organized to advocate for legislation authorizing the town to regulate and restrict fracking operations. One of the council members is a member of the anti-fracking group. She thinks that the council should give the opponents equal time on the agenda.
Does the council have any legal obligation to provide time on the agenda for other points of view? Probably not. First Amendment cases have long held that when a forum exists for public expression, the government cannot engage in viewpoint discrimination. It can establish viewpoint neutral rules about where, when, and how the public can speak, but it cannot promote or discriminate against a particular point of view. The developing case law regarding “government speech” recognizes the government’s ability, in certain situations, to take sides. This post explores how the government speech analysis might apply to local government meetings and hearings in North Carolina.
What is Government Speech?
In an earlier blog, I discussed Pleasant Grove City, Utah v. Summum, the United States Supreme Court decision in which the justices unanimously held that the city could, display in the city park a monument bearing the Ten Commandments, but refuse to accept a monument representing the Summum religion. The choice of monuments in the park represented government speech, the court said, and the city was free to choose which monuments it put on permanent display in its park. Last year in Walker v. Texas, the Court applied the government speech analysis to the controversial issue of specialty license plates, upholding the state’s decision to reject a proposed license plate bearing the image of a Confederate battle flag. The Court held that the state’s license plate program is government speech, and not a forum for citizens’ private expression. (The Fourth Circuit Court of Appeals had reached a different result in a North Carolina case, ACLU v. Tata, 742 F.3d 563(4th Cir. 2014), holding that the state’s specialty license plate program involves private speech, not government speech, so the state was engaged in viewpoint discrimination when it authorized a pro-life plate but not a pro-choice one. The Supreme Court vacated the Fourth Circuit decision and remanded the case for reconsideration in light of the decision in Walker v. Texas.)
The developing case law on government speech has some observers concerned. The courts have long recognized that the government can adopt and advocate for or against particular policies, and use the power of the purse to subsidize programs and activities that the government wants to promote. But the recent government speech cases involve the government’s endorsement or adoption of private speech. The question in these cases is whether the government has created a forum for citizen expression, or whether instead, the government has taken a position by adopting private speech as its own. If the government is in fact adopting private speech, the Supreme Court has held, the First Amendment – including its requirement of governmental viewpoint neutrality – simply does not apply. As the Supreme Court said in the license plate case, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says… That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.” Walker, 135 S.Ct. at 2245. Subject to a few restrictions (discussed below), the government can take sides when it is doing the talking.
Government Speech or Public Forum?
How does a court determine whether the government has created a forum for citizen speech or is instead doing the speaking itself by adopting private speech as its own. The recent cases set out three main factors:
- Does history show that government has long used this type of speech or mode of communication as a means of communicating with the public?
- Does the public routinely and reasonably interpret the communication as conveying a governmental rather than a private message?
- Does the government exercise and maintain control over the selection of the message?
Application to Local Government Meetings
How does this analysis apply to meetings of local governments? Take the Pleasantville meeting for example. Did the inclusion of Extraction Services on the agenda create a forum for private expression, or is the town engaging in government speech by adopting the message of the private business as its own? Considering the first factor, the meetings of local governing bodies certainly have a long history as venues in which the government openly transacts its business. North Carolina’s open meetings law provides the public a right to attend meetings, but not a right to speak. As discussed below, parts of meetings are opened up for public comment, sometimes voluntarily by the board, and also by state mandate. Except perhaps in a New England style town meeting form of government, however, the bulk of a council meeting involves the board doing its business as a body, with contributions from others occurring only as requested by the board. History suggests that except as to portions explicitly opened up for public comment, a meeting is not a public forum for private expression.
Applying the second factor, it seems likely that members of the public reasonably understand the difference between the part of the meeting in which the public may participate (discussed below) and the part in which the board works through its agenda. So it seems likely that they would interpret private communications in a meeting made by invitation of the board as conveying a message approved and perhaps adopted by the council.
Finally, it seems likely that the third factor will be met, since it is clear that the board controls its agenda.
So it appears that in the normal course of things, the council may legally choose a side in a policy debate and may use its meeting to promote that position. It may invite private speakers to make the arguments. This conclusion is consistent with the holding in Page v. Lexington County School District, 531 F.3d 275 (4th Cir. 2008), a “government speech” case involving links on a government website, summarized in my blog post here.
Application to Hearings and Public Comment Periods
Some parts of meetings are not dedicated to government speech. A public hearing or public comment period is by definition an opportunity for citizen expression. Cases have recognized these parts of public meetings as designated forums in which the government may impose only time, place, and manner restrictions. See Surita v. Hyde, 665 F.3d 860, 869 (7th Cir. 2011) (“There is no doubt that audience time during Waukegan city council meetings constituted a designated public forum.”); Galena v. Leone, 638 F.3d 186, 198 (3d Cir. 2011) (“In both traditional public forums and designated public forums the government may enact reasonable time, place, and manner restrictions on speech, but any restrictions on the content of speech must be tailored narrowly to serve a compelling government interest.”); Steinburg v. Chesterfield County Planning Comm’n, 527 F.3d 377, 385 (4th Cir. 2008) (“[A] government entity…is justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business. But any restriction must not discriminate on the basis of a speaker’s viewpoint.”). While there is no obligation for the board to obtain any particular balance of comments, the government cannot engage in viewpoint discrimination in this type of forum.
Similarly, North Carolina’s statutorily-mandated public comment period is designed to provide an open forum for a wide range of public views. State laws governing public hearings and public comment authorize boards to adopt rules governing the “conduct” of the hearing, such as time limits, and maintenance of order and decorum. See G.S. 153A-52 (hearings), 52.1 (public comment); G.S. 160A-81(hearings), 81.1 (public comment). These statutes also authorize a board to require designation of spokesmen for groups supporting or opposing positions. There is no authority in any of these statutes, however, for any restrictions on the basis of viewpoint or content of speech.
There is one exception to the notion that hearings provide a forum for general public expression. Quasi-judicial hearings are used when due process requires a decision to conform to specific legal standards and to be supported by competent evidence and testimony. As described in a blog post here, a speaker at a quasi-judicial hearing must have standing as either a party or an expert. These types of hearings are neither government speech nor a forum for public expression.
Limits on Government Speech
Courts have recognized that there are some limits on government speech even though the First Amendment-based requirements of viewpoint neutrality don’t apply. For example, the Establishment Clause prohibits the establishment of religion through government speech, and differential treatment could violate equal protection rights.
In addition North Carolina has both common law and statutory limitations on government speech regarding matters that are to be decided in a referendum. As summarized in blog posts here and here, courts have held that government officials must refrain from using public resources to advocate for or against issues that the voters will decide. In addition, G.S. 160A-499.3 and 153A-456 prohibit cities and counties from using public funds “to endorse or oppose a referendum, election or a particular candidate for elective office.” While this provision has not yet been interpreted by a court, it seems possible that it limits a governing board even from using the resources involved in conducting a public meeting to engage in government speech regarding a matter that will be decided by an election.
Should the Government Take Sides?
It appears that the Pleasantville town council can endorse one side of the fracking debate during the regular agenda, and the folks on the other side of the debate can be limited to the statutory comment period to present their views. Individual board members, of course, have free speech rights. So the council member who sides with the fracking opponents could speak during the meeting to express his opposing view.
But how far can the council go to promote this business opportunity? Can it create a link on the town’s homepage to the website the industry has created to promote hydraulic fracturing? Can it dedicate space in town hall for the company to provide information and conduct meetings with citizens? Can it do these things without providing comparable outlets for other views? Perhaps so. As the Supreme Court noted in the Texas case: “Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization? ‘[I]t is not easy to imagine how government could function if it lacked th[e] freedom’ to select the messages it wishes to convey.” Walker, 135 S.Ct. at 2245 (citing Pleasant Grove v. Summum, 555 U.S. 460, 468 (2009)).
Of course, elected officials who have the power to speak on behalf of their constituents must consider the wisdom of taking sides, especially when their communities are divided. As always, if the citizens aren’t happy with the board’s position, they will have their say at the next election.