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Richmond County commissioners approve public comment policy, despite concerns from free speech advocates

John Whitehead, attorney and president of the Rutherford Institute, based in Charlottesville, Virginia.

ROCKINGHAM — The Richmond County Board of Commissioners on Tuesday unanimously approved the new public comment policy, despite a last-minute letter from a civil liberties organization with concerns over the potential chilling of free speech.

The policy was updated after more than 20 years to remove a provision that prevented residents and concerned parties from speaking about items that were on the agenda and to extend the amount of time for would-be speakers to sign up for the public comment section.

First Amendment experts had criticized the former policy, saying it posed “serious concerns for free speech,” and the changes were suggested by Commissioner Andy Grooms — who had tried to get the topic on the agenda as far back as February 2021 — during the December meeting.

The revised policy was drafted by Dena Cook, the board’s clerk, who County Manager Bryan Land said Cook “has done a tremendous job researching this from other counties, the (UNC) School of Government, and various locations.”

“She’s done a considerable amount of work,” Land added.

When the draft was presented in January, Grooms’ only request was to keep the time limit for speakers at five minutes, instead of the shortened three minutes. That change was made to the approved policy.

(See a copy of the policy attached at the bottom of this story.)

Land said County Attorney Bill Webb had reviewed the policy “and given it his blessing.” The reason the vote on the policy was pushed back from January, as originally proposed by Commissioner Justin Dawkins, was because Webb had not yet had time to look it over.

Forty-five minutes prior to the start of the meeting, John Whitehead — a civil rights attorney and president of the Virginia-based Rutherford Institute — sent a letter via email to each commissioner (as well as Land and Cook) saying that certain provisions of the new policy “raise significant concerns as they could violate or create a chilling effect on the First Amendment rights of your constituents to freely express their concerns, and the Board should therefore eliminate those provisions from the policy.”

(See the letter as an attachement at the bottom of this story.)

“Public meetings of local legislative boards have historically served as the quintessential citizens forum — giving individuals the opportunity to speak on issues important to the community and to directly address those who have the authority to take action on such matters,” Whitehead said. “The First Amendment’s protections of freedom of speech and the right to petition the government therefore apply to public meetings of bodies such as the Richmond County Board of Commissioners.”

Whitehead’s main concerns were with rules 4 and 7 which prohibit comments that are deemed “inappropriate” or “embarrassing” to other citizens or county employees; and prohibit discussion on closed session-type items.

“The rules at issue here are not aimed solely at maintaining the order and decorum of the  meetings, but rather restrict any speech which a commissioner might consider ‘harmful’ or  ‘embarrassing,’ and thus make such speech vulnerable to censorship,” Whitehead said, citing the 1972 U.S. Supreme Court Case Grayned v. City of Rockford.

“Therefore, your constituents might fear that if they express anything which could be construed as being critical of a county official or employee, or which might highlight a failure or wrongful act which an official or employee feels embarrassed about, that the constituents’ right to speak at the meeting(s) will be revoked and that they could face being charged with a criminal  offense,” Whitehead continued. “This could create a chilling effect on your constituents and thus inhibit them from freely  expressing concerns to their elected officials.”

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Whitehead also pointed out that while the policy bars criticism, it doesn’t prevent speakers from giving praise.

“This could therefore be considered impermissible censorship and viewpoint discrimination in violation of the First Amendment,” Whitehead said. “Further, there does not appear to be any basis or justification for a rule prohibiting speakers from commenting on ‘closed session type issues…and matters which are subject of public hearings,’ which could involve important issues of public concern.”

The attorney said the board should maintain “an open and robust exchange of views” with the people of Richmond County instead of “seeking to restrict” the ability to communicate with their elected representatives.

“The limits on speech imposed by these rules in the proposed Policy are not only contrary to the First Amendment but are unwise,” Whitehead concluded. “For citizens to feel vested in their government, they must know that they are free to express their views and be heard by their representatives. The Rutherford Institute therefore urges the Board to revoke these rules and provide its constituents with a free and open forum for speech.”

None of the commissioners acknowledged Whitehead’s letter during the meeting.

Similar points were made by Brooks Fuller of the N.C. Open Government Coalition in a story published by the RO prior to the meeting.

(Note: This post was edited to include the letter from the Rutherford Institute as an attachment.)

 

 

 

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Managing Editor William R. Toler is an award-winning writer and photographer with experience in print, television and online media.