1. The First Amendment for Local Governments
Mark Flynn
General Counsel
Virginia Municipal League

2. L.A. City Council discusses medical marijuana

3. Anaheim City Council Council meeting closed by fire marshal
Anaheim City Council Council meeting closed by fire marshal. Protest of shooting of citizen

4. Back to 1791
1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

5. The areas that apply to local governments
Public forum doctrine
Traditional public forum
Limited / designated public forum
Non public forum
Regulation of speech generally
Sign ordinances
Employees
Rules for governing body members
Prayer at public meetings

6. Traditional public forum – speech on any topic
Town square
Sidewalks – may not impede pedestrian use
Reasonable time, manner & place restrictions – not on content of the speech

7. Traditional public forum?
Protest on Capitol grounds – 2012 session of General Assembly (Capitol steps not a public forum)

8. Or are they?

9. Designated or Limited public forum
Portion of council meeting where public comment accepted.
Public hearing
Public comment period
Speech limited to topic under consideration
During limited public forum portion of meeting

10. 1st Amendment right does not extend to:
Disruptive speech – Steinburg case
Personal attacks
HAMPTON — Hampton Mayor Molly Joseph Ward on Thursday defended kicking former state lawmaker Tom Gear out of a City Council meeting on Wednesday, saying she had no choice but to enforce the council's rules.
Gear was forced to leave the meeting and charged with trespassing when he refused to stop demanding an answer to his question: When did Ward first learn about the Hampton Police Division's undercover cigarette operation?
"I believe it's my job as chair of the body to make sure that rules of protocol and decorum are followed," Ward said, saying Gear was out of order at the meeting. "I did my best to make sure that the rules of the body were followed.“ Daily Press, 10/11/12
Council or other public body may/should set rules – time limits, non-repetitive.

11. Non-public forum Most of council meeting not a public forum
Public has right to attend and right to be quiet
Public buildings
generally a non-public forum

12. Other free speech issue at meetings
Prayer at public meeting?
Government speech
4th Circuit has repeatedly made rule clear – no religious-specific prayers
Attorneys fees a practical risk
What about a Wiccan? Nope
But wait! US Supreme Court to hear Greece, NY v. Galloway. Could overturn 4th Circuit.

13. Why can’t we be friends? Disruptive council members
Council may not restrict a councilor’s speech based on the position he or she takes
May discipline a member for disruptive speech, personal attacks (time, manner & place restrictions – content neutral)
§ D. A governing body may punish or fine a member of the governing body for disorderly behavior.

14. Other free speech issues
Arlington sign ordinance Wag More Dogs, LLC v. Cozart

15. Bye-bye pooches

16. Up in smoke?
Arlington head shop after Wag More. Blunt repainted to whale “We don’t sell whales”

17. Town of Cary, NC sign ordinance – town ordinance upheld by 4th Circuit.

18. Lexington, VA street banners
City passed rule to make street a non-public forum. Upheld by 4th Circuit.

19. Public employees’ right to speech
May not discipline for speech on matters of public concern – Pickering v. Board of Ed., 391 U.S. 563, 88 S. Ct (1968).
must be on a matter of public concern, and the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to the ‘interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’

20. Virginia Municipal League
Mark Flynn
General Counsel
Virginia Municipal League