HAMLET — Two organizations are weighing on policies passed by the Hamlet City Council that may violate the First Amendment and the free speech rights of residents.
At its January meeting, the council adopted Rules for Decorum for Public Comment developed by City Manager John Terziu and City Attorney T.C. Morphis.
“We actually pulled those from a few other cities and did our research and made sure we were statutorily sound,” Terziu said.
According to the “Purpose and Authority" section of the rules, they are “not intended to regulate or limit the content or viewpoint of speech, but rather to ensure that public meetings are conducted in a civil, orderly and efficient manner so that the city’s business may be conducted without disruption.”
However, the Foundation for Individual Rights and Expression, based in Philadelphia, found several concerning issues with the policy.
FIRE Program Counsel Brennen VanderVeen said the “most problematic” portion of the rules is regarding civility and respect.
“Requiring speakers to be civil and ‘respectful’ violates the First Amendment for at least two reasons,” said VanderVeen. “First, these standards are inherently vague, as there is no way for a speaker to know exactly when a government official will think criticism crosses the line into being uncivil or disrespectful.”
Despite the policy’s aforementioned claim that it is “not intended to regulate or limit the content or viewpoint of speech,” VanderVeen said it does just that.
“...these standards are viewpoint discriminatory because, as courts have repeatedly held, giving offense is a viewpoint,” VanderVeen said.
“Banning ‘personal attacks’ has the exact same problems,” VanderVeen continued. “Banning profanity and ‘vulgar language’ has similar problems, as there is no distinct legal category of ‘profane’ speech, and the Supreme Court has held banning certain words just because they are offensive is viewpoint discriminatory.”
While VanderVeen acknowledged that obscenity is not protected speech, he said for something to qualify as obscene it must meet a strict legal test established by the Supreme Court: “‘obscene gestures’ will rarely if ever qualify, so they too are almost always going to be protected.”
VanderVeen also said he was concerned with a rule that allows the mayor or presiding officer to increase or decrease the time allotment “to manage the agenda efficiently.”
“If the presiding officer does so in a uniform way without regard to the messages speakers have, that's constitutionally acceptable,” VanderVeen said. “The First Amendment would, however, prohibit the presiding officer from giving favored speakers more time or disfavored speakers less time.”
The N.C. Open Government Coalition weighed in, saying “it's one thing to have a decorum policy and quite another to enforce it.”
“They can encourage people to follow certain rules, but the moment they silence someone is when the (First Amendment) violation would likely occur.”
FIRE has also found fault with another policy regarding comments left on the city’s Facebook page — for many of the same reasons.
That policy, in part, states that the city has the right to delete submissions that contain:
Aaron Terr, FIRE’s director of public advocacy, said several of those restrictions violate the First Amendment.
“When the government opens an online forum for public comments, as the city appears to have done here, it must play by First Amendment rules,” Terr said. “The city cannot evade its constitutional obligations by simply declaring that it does not intend to create a public forum; it's the nature and function of the space, not the label the city assigns to it, that determines whether First Amendment constraints apply.”
Just as VanderVeen pointed out in the Rules of Decorum, Terr said the bans on "personal attacks" and "offensive comments that target or disparage any ethnic, racial, or religious group" are “classic examples of viewpoint discrimination.”
“These and other provisions are also unconstitutionally vague,” Terr said. “What, for example, does it mean for a comment to be ‘in the public interest’? That standard is hopelessly subjective and invites arbitrary enforcement, making it easy for the city to suppress criticism and other speech it wants to hide from public view.”
Terr suggested that the city could create a limited public forum, confined to specified topics, but the rules must be reasonable and clearly defined to avoid giving officials unchecked discretion in deciding what speech to allow.”
Upon review, the N.C. Open Government Coalition offered another suggestion.
“The smart way to handle this is to simply disable comments and avoid having to moderate them. They don't have to allow comments,” the OGC said in a statement to the RO.
“We view the deleting of comments by public bodies as a violation of the public records law — destruction of public records. Blocking people is also a violation of the law.”
In 2024, FIRE reviewed the public comment policy adopted by the Richmond County Board of Commissioners, with similar criticisms.
There has been no public discussion regarding making the suggested changes.
