Public Agencies Can Place Reasonable Time Restrictions On Public Comments, Court Says
By Alexander M. Brand, Best Best & Krieger LLP
Does your agency place a time limit on public comments at meetings?
So long as time restrictions placed on public comment periods are reasonable and don’t violate state or federal law, the Second District Court of Appeal, in a recent decision, effectively gave entities the OK to continue the practice.
The decision falls in line with a string of rulings that strike a balance between the public’s right, and need, to address elected officials, while granting agencies the ability to efficiently manage meetings.
In, Ribakoff v. City of Long Beach, the appellate court affirmed that the City of Long Beach’s public comment time restriction used during legislative meetings did not violate the First Amendment’s right to free speech or California’s Ralph M. Brown Act “open meeting” law that assures public participation in local government.
The court held that, while speech at government meetings is a protected right, it is not unlimited. Public agencies may limit speech at meetings based on time and even content — including limiting a speaker to address only the topic or agenda item at issue.
Three-Minute Time Limit’s Constitutionality Called into Question
The plaintiff in the case, Joe Ribakoff, regularly attended Board of Directors’ meetings for the municipal transit company, Long Beach Transit. At a meeting in August 2015, Ribakoff filled out a public speaker’s card, which informs speakers of their three-minute time restriction, and addressed the Board on an agenda item concerning transit fares for the three minutes allotted to each speaker.
Staff members, and others invited to speak on the agenda item, addressed the Board concerning the item before and after Ribakoff. These speakers were not limited to three minutes each.
When Ribakoff attempted to speak on the same agenda item a second time during the Board’s deliberation and voting period, the chairperson informed him that his three minutes had been used. While the Board’s counsel advised the chair that the Board had discretion to grant speakers additional comment time, Ribakoff was granted no more and his microphone was cut off.
After an exchange with the Board and a Long Beach police officer who routinely provided security for the meetings, Ribakoff left the lectern and later the meeting room. The same officer approached Ribakoff after the meeting, and, citing a Long Beach Municipal Code, warned Ribakoff he “would certainly be arrested” if he spoke out of turn again. Ribakoff did not return to later transit company meetings.
Ribakoff sued the City of Long Beach, and others, claiming the Board’s comment-period rules applying only to members of the public and limiting their speech to a specified time on a particular agenda item were content-based and therefore prohibited by the Brown Act and First Amendment’s free speech clause.
He also alleged the City’s Municipal Code acted as a prior restraint because it was overbroad, vague, unreasonable and not content neutral. After a bench trial, the court entered judgment for the defendants. The appellate court also found neither statutory nor constitutional violations.
Agency’s Comment Time Limit Deemed Reasonable by Appellate Court
The appellate court determined the transit agency’s three-minute public comment time restriction was reasonable and not in violation of the Brown Act or the First Amendment.
The Brown Act, the appellate court noted, is “intended to ensure the public’s right to attend the meetings of public agencies[,] … to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation of public bodies.”
The court clarified that, as a charter city, the City of Long Beach had complete power over its municipal affairs, including the adoption of ordinances. Even if the Brown Act was relevant here, the court said, it expressly permits legislative bodies “to adopt reasonable time limitations on public testimony.”
Additionally, the appellate court held the restriction did not violate the First Amendment because it was a content-neutral restriction that simply placed limits on the amount of time someone could speak, not on what the person said.
Ribakoff also argued that the City’s time restriction violated the law because it was not uniformly applied to all speakers, specifically staff members and invited speakers. The appellate court concluded the board had a reasonable justification for treating staff members and invited speakers differently than members of the public who are limited to a three-minute comment period.
This decision provides reassurance to public entities that reasonable time restrictions on public commenters at meetings can be enacted and enforced, and that agencies may differentiate between staff and invited speakers, on the one hand, and members of the public, on the other, in applying those time restrictions. Although members of the public are guaranteed the right to attend and participate in the meetings of local governing bodies, their speech is not unlimited, and entities can place limits on speech based on time and, in some cases, content — specifically agenda items.
Alexander Brand is an associate in Best Best & Krieger LLP’s Municipal Law practice group. Based in the firm’s Los Angeles office, he represents public agencies and private-entity clients in litigation in state and federal courts and also works with public agency clients on government transparency issues. Reach him at email@example.com.