Boards of education are required under state law to have a portion of every meeting set aside for public comment on school district issues. See N.J.S.A. 10:4-12. Under the Open Public Meetings Act, boards are allowed to decide the length of the comment period. Boards should tread carefully, however, in placing further restrictions on speech during the public comment period to avoid violations of the First Amendment right to freedom of speech. The Supreme Court of New Jersey considered the limits on free speech in a 2010 decision.
In that case, though the board allowed speakers five minutes each during the public comment period, a parent who had expressed concern about inappropriate conduct by coaches (including his child’s coach) at prior meetings was silenced after no more than 30 seconds. Before the parent began to speak, the board president stated that the public comment period could not be used for personnel matters, though the board’s practice was not to restrict positive comments about district personnel.
The parent then began making comments about the district’s policies prohibiting harassing or abusive language or conduct, but he was gaveled down for the alleged reason that his remarks repeated points he made at prior meetings, and he was limited to handing out prepared comments. Significantly, other speakers during the same public comment period were allowed to exceed the five-minute period. Thereafter, the parent, spouse, and student brought claims against the board alleging, among other things, violation of the parent’s First Amendment right to freedom of speech.
In its decision, the court noted that a board of education may impose reasonable content-neutral restrictions on the time, place, and manner of speech during the public comment portion of the meeting. Such content-neutral restrictions must be: (1) “justified without reference to the content of the regulated speech,” (2) “narrowly tailored to serve a significant governmental interest,” and (3) also “leave open ample alternative channels for communication of the information.”
A board could exercise content-neutral restrictions by, for example, stopping a speaker that was disruptive or not staying on agenda topics, or whose speech became repetitive or irrelevant. However, the board could not allow the public comment period to be reserved only for individuals whose views the board found acceptable while excluding those viewpoints it found unacceptable.
The court ultimately upheld the jury’s verdict, which determined that the board did not show that its restriction on the parent’s speech was content-neutral. Though the board had opened up other channels for the parent’s speech, the jury found that the restriction was not imposed to serve a significant governmental interest, but appeared to have been motivated by the content of the speech, which the board found disagreeable.
Ultimately, the court concluded that though there could be reasonable disagreement about the outcome of the case, the jury’s verdict was sustainable based on the evidence.
Boards concerned about speech occurring during the public comment portion of their meetings should be mindful of the content-neutral test discussed by the court in this case. For more information, board members may seek to discuss this matter with their board attorney or call the NJSBA Legal and Labor Relations Department at (609) 278-5254.