Home Local News FIRE finds faults with Richmond County public appearance policy; speakers denied

FIRE finds faults with Richmond County public appearance policy; speakers denied

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ROCKINGHAM — A lawsuit waiting to happen.

That’s how Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, describes the public appearance policy of the Richmond County Board of Commissioners.

“I noticed one problem after another while reading this policy,” Terr said in an email to the RO after a review. “It would make for a good issue-spotter question on a law school exam.”

FIRE (formerly the Foundation for Individual Rights in Education) is a leading defender in the exercise of free speech based in Philadelphia, Pennsylvania. Its original mission was to defend students and faculty against overzealous college administrators, but the organization expanded its scope off campus and into the rest of society in 2022.

The current public appearance policy was adopted by commissioners in February of 2022 — at the urging of Commissioner Andy Grooms — to amend several issues from the previous policy, which free speech experts said posed “serious concerns.”

Commissioner Andy Grooms sits during the June meeting of the Richmond County Board of Commissioners, where several people spoke out about a recent social media post he made. Photos by William R. Toler – Richmond Observer

Grooms had first mentioned revising the policy in a February 2022 email, but it wasn’t brought up until December of that year.

Click here to read the first discussion on revisions.

However, the draft of the policy — revised by Board Clerk Dena Cook — was chided by both the N.C. Open Government Coalition and the Rutherford Institute prior to its approval.

Click here to read about the N.C. Open Government Coalition’s issues with the policy.

Click here to read more about the passage of the policy and the analysis by the Rutherford Institute.

Click here to read the RO’s editorial about the policy.

“The most concerning rules are those that attempt to insulate county officials from negative commentary,” said Terr.

Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression

One of the provisions in the policy prohibits “… matters or comments which are harmful, discriminatory or embarrassing to any citizen(s), official(s) or employees of Richmond County…”

The policy also forbids comments: regarding candidacy of anyone seeking elected office; requesting funding for a program or activity; on matters “in current or anticipated litigation;” or closed-session issues.

“Banning speech that is ‘embarrassing’ to a county official (or anyone else) is laughably unconstitutional,” Terr said. “There is no First Amendment exception for speech that makes government officials feel bad. The prohibition on ‘personal attacks’ needs to go for the same reason.”

Terr went on to address other issues with that provision.

“Board members also have no power to restrict speech simply because they ‘deem” it ‘inappropriate,’ which would give them discretion to shut down any comments that rub them the wrong way,” Terr continued. “The ban on comments about political candidacies strikes right at core First Amendment speech about who the people should elect to office.

“And it’s hard to see any constitutional justification for banning discussion of ‘closed session’ issues or matters subject to litigation,” Terr said. “Allowing the public to discuss those issues, which they have the right to do, would not force any board member to say anything about them.

“The problems don’t end there,” Terr added. “Several courts have struck down bans on personally directed comments. That type of rule isn’t needed to maintain order. The board can instead ban threats and disruptive conduct.”

Hamlet resident Pam Simmons Young was temporarily barred from addressing commissioners after county officials perceived her social media comments as threatening.

Click here to read about Young’s ban.

Per the policy, speakers must sign up to speak with Cook by 5 p.m. on the Friday prior to the next meeting.

Several of those who spoke out last month against a social media comment made by Grooms attempted to be added to the agenda for the July meeting. They were denied.

Click here to read about the public appearance section from the June meeting.

Taryn Masterson addresses the Richmond County Board of Commissioners in June.

In emails obtained by the RO, Cook denied requests from Taryn Masterson, Jerry Tilley and Jara Flowers.

Last month, Masterson had called out the rest of the board members for their “deafening silence” over Grooms’ comment, telling them their “silence is complicity.”

Masterson reiterated that point in subsequent emails to the commissioners.

Receiving no response, Masterson wrote to Cook on June 27 (the day before the deadline): “You can put me right back on the agenda for July 2nd, same topic, since it’s clearly not going to be addressed before then.”

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Cook’s initial response evoked the policy’s residency requirement which states that the forum is open to any Richmond County “resident and/or property owner…”

“It has come to our attention that you are not a resident of Richmond County and therefore are not eligible to participate in the public forum,” Cook said.

Masterson replied that they had exchanged similar emails the month before, and said that she maintains a part-time residence in the county, giving her parents’ address.

While Terr did not address the residency requirement in his review of the policy, Frayda Bluestein of the UNC School of Government wrote in 2016:

“There is no explicit authority for such a limitation in, and I have doubts about its legality, even though one case has held that such a restriction does not violate the constitution … In the absence of any specific statutory authority for limiting the categories of people who may speak, I think a rule restricting comments to residents or taxpayers would be on feeble legal ground.”

In her response the following morning, Cook denied Masterson both on topic and residency: “The matter you plan on speaking on is not germane to our Board of Commissioners. The Board of Commissioners does not have the jurisdictional authority to discuss the topic. Additionally, State records reflect you reside in the Raleigh/Durham Area, NOT Richmond County.”

Likewise, Cook denied both Tilley and Flowers because their topic was “not germane” to the board.

Jerry Tilley addresses the Richmond County Board of Commissioners in June.

Tilley wanted to address “the continued refusal of county government to address homophobic comments made by Andy Grooms.”

After Cook informed him that he would “not be allowed to speak during the open forum,” Tilley replied: “While your board may not have jurisdictional authority to discuss anything, I have a right to speak about any topic that is relevant to the county at large.”

In a subsequent email, after being shot down again for the same reason, Tilley replied: “You can feel free to change my topic to ‘a continued call for inclusivity and associated events’ if that will be more ‘germane’ to the county commissioners.’

Again, Tilley was denied.

“What about my issue about the need for awareness in the county is not germane to the board in charge of the county?” Tilley asked Cook. “I’m genuinely curious. It’s a public comment section and I’m commenting on a public issue.

“Please understand that this is not going to stop me from speaking out on this issue and that if you continue to deny me based simply on the fact that the board doesn’t want to have to deal with policing one of their own I’ll be forced to follow up with the ACLU as this is a direct violation of my First Amendment rights,” Tilley added.

Flowers wrote to Cook on June 28, requesting to address “inclusion and diversity in county representation.”

In an almost carbon copy of what she told Tilley and Masterson, Cook replied: “The matter you plan on speaking on is not germane to our Board of Commissioners. Therefore, you will not be allowed to speak during the open forum at our July monthly meeting.”

“Thank you for the clarification,” Flowers simply replied.” That my first amendment rights are being violated. I’ll move forward accordingly.”

Even though rules may be constitutional as written, Terr said their enforcement can violate the First Amendment, giving the example of the requirement that comments be related to county business.

“At least one court has invalidated a ban on ‘irrelevant’ comments as too vague, though others have upheld relevance requirements,” Terr said. “But even assuming this rule is valid, the board cannot use it as a pretext to censor views it disagrees with or to sweep inconvenient issues under the rug.”

While they have been denied a chance to speak during the meeting, a protest is scheduled to begin at 3 p.m.

Several months ago, Grooms said in a meeting that the board should revisit the policy, but there has been no public discussion of it since.

“A public comment period isn’t a cheerleading session,” Terr said. “It’s an opportunity for citizens to speak freely to their representatives, and it may well include sharp criticism of their leadership. The board should revise this policy. It’s a lawsuit waiting to happen.”

Note: This story has been updated to include a copy of the public appearance policy. 7:31 p.m. 7-2-24.