Wednesday, 10 February 2021 19:31

1st AMENDMENT EXPERTS: Richmond County comment policy poses 'serious concerns' for free speech

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From left: Ken Paulson, Free Speech Center; Frayda Bluestein, UNC School of Government; Brooks Fuller, N.C. Open Government Coalition From left: Ken Paulson, Free Speech Center; Frayda Bluestein, UNC School of Government; Brooks Fuller, N.C. Open Government Coalition

ROCKINGHAM — A provision in the Richmond County Board of Commissioners’ public appearance policy appears problematic, according to open government and free speech experts.


The policy re-entered public discussion on Jan. 29 when it was posted to the Facebook group What’s Up Richmond County, eliciting 143 comments — most of which were critical of the policy.

In order to speak during the public comment section, one must contact the board’s clerk the Friday prior to the meeting, which is generally held on the first Tuesday of each month, and “specify the subject matter or  nature of comments to be made.”

Ken Paulson, director of the Free Speech Center of Middle Tennessee State University, explained that governments can limit speech based on three factors: time, manner, and place.

“The government can set rules, but the rules have to be independent of opinions,” Paulson said.

The part of the policy that limits the open forum to 30 minutes and individual speakers to five minutes is legal.

In a 2016 post on the Coates’ Canons blog for the UNC School of Government, Frayda Bluestein explains that governments may also limit topics to those that fall under the board’s jurisdiction.

But another part of the policy, which prohibits speakers from discussing items on the agenda for that meeting, “poses pretty serious concerns for free speech,” according to Brooks Fuller, director of the N.C. Open Government Coalition at Elon University.

“Generally, courts give public bodies broad authority to make sure that public comments are germane to the public body’s work,” Fuller said. “But I’ve never seen a public body expressly prohibit discussion of business that’s squarely on its agenda. What good is a public comment period if it doesn’t allow the public to discuss business that is about to come before the body?”

The policy — which also prohibits matters concerning candidacy of anyone seeking public office, matters in current or potential litigation, and requesting that the board consider funding a a certain program or activity — dates back more than 20 years.

In 2017, local and state environmental activists were prohibited from speaking out against the Enviva plant because it was on the agenda, as reported by this writer for the Richmond County Daily Journal.

Then-Commissioner Thad Ussery told this writer later that year that the policy had been put in place in the late ‘90s during a time of controversial decisions and it allowed the board to keep meetings in order.

“The public comment opens up (a) forum for any comments about anything related to the business of the board,” Bluestein told the RO via email. “So the board can’t prohibit citizens from talking about the agenda items during the public comment period.”

Paulson said the provision is “wrong-headed,” but he doesn’t believe it’s a violation of the First Amendment because "it states clearly the parameters of the public forum and doesn’t target any particular viewpoint."

“It’s very odd, it’s very unusual, and flies in the face of the spirit of public input,” Paulson said. “They’re essentially saying, ‘We want public input for things that are not as important as what we’ll be discussing today.’”

Fuller said he is concerned about a situation where the board won’t allow comment if an agenda item is up for a vote.

“If the agenda item is the board’s first opportunity to deliberate on the subject, I could see some justification for taking comment after the board is fully informed,” Fuller said. “As it stands, denial of public comment on a particular issue should be the exception and not the rule.”