The 5th Circuit has held that the presiding officer may be held liable for improperly shutting down a speaker during “public comment.” This case has important implications for those who serve as presidents of school boards.
What happened: Mr. Heaney was three minutes into his allotted five minutes of public comment before the Jefferson Parish council when Mr. Roberts, the presiding officer, interrupted him and called on the Parish’s attorney. Mr. Heaney had been questioning the legality of certain actions by the council and its members. The attorney expressed her opinion that nothing illegal had occurred. When she finished speaking, Mr. Heaney continued, intending to use his remaining two minutes. But when it became clear that Mr. Heaney was challenging the legal opinion just offered, the presiding officer jumped in:
Roberts: Let me, we’ve had this conversation before, ok?
Heaney: Are you trying to stop me from speaking?
Roberts: Well you yielded and I do have the floor….so….I’m not going to turn this into a circus, ok? If you don’t believe what Ms. Foshee’s comments were—
Heaney: I—
Roberts: Let me finish. Last I checked, Ms. Foshee had a law degree hanging on the wall in her office. If you’re challenging whether or not what she’s saying to be accurate or not, you can go right to the elevator downstairs. The Clerk of Court’s office is there, and you’re welcome to file suit. This is not the forum for you to challenge the opinion of the parish attorney, ok?
Heaney: Now if I can be able to speak—
Roberts: No, let me finish. Let me finish. Once again, I’m going to ask you, are you an attorney?
Heaney: I don’t have to be an attorney to read and comprehend a decision—
Roberts: But I’m not going to sit here and have you berate the parish attorney.
Heaney: I have a decision. I have a decision by HUD that contradicts what Ms. Foshee says—
Roberts: Sir, ok. Your time’s up and I’m going to ask that you be removed because you’re being hostile so if you would please exit.
Heaney: I’m not being hostile.
Roberts: If you’ve got a problem with that, you can go downstairs…..This is the third time that you’ve tried to take issue with something….
Heaney: You’re trying to stop me from presenting facts that contradict Ms. Foshee. Your’re taking my time, and you’re violating parish ordinance.
Roberts: If you’d please remove the gentleman.
At which point the cop took Mr. Heaney out of the room. Robert’s Rules of Order, indeed!
Mr. Heaney sued Mr. Roberts, alleging that the presiding officer deprived him of his First Amendment right of Free Speech. Mr. Roberts filed a Motion to Dismiss the case, based on his qualified immunity. As a government official, Mr. Roberts is entitled to qualified immunity unless his actions violated legal standards that were “clearly established” at the time.
The legal standard here is the right to be free from viewpoint discrimination when participating in a “limited public forum.” The public comment section of a governmental meeting is a good example of a limited public forum. The 5th Circuit noted that “It is beyond debate that the law prohibits viewpoint discrimination in a limited public forum.” In other words, this is “clearly established.”
If Mr. Roberts had simply tolerated Mr. Heaney’s remarks for another two minutes he could have then shut him down without any legal complications. Likewise, if Mr. Heaney had veered far off topic—after all, it’s a “limited” public forum. But as the 5th Circuit notes in its decision, “Heaney was speaking on an approved topic and within his allotted time.”
Thus the issue becomes: why did Mr. Roberts cut off Mr. Heaney two minutes early? The Court:
Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’s motive or intent in silencing and ejecting Heaney from the meeting.
So the case continues. The court refused to dismiss the claim against Mr. Roberts. It will be up to a jury to decide: did Mr. Roberts shut him down because of the content of the message? If so, that would be viewpoint discrimination, which is unconstitutional in a limited public forum.
Board presidents should take note of this case. This is a binding decision from our 5th Circuit and will certainly be cited in future cases. The case is Heaney v. Roberts, decided by the 5th Circuit on January 23, 2017. We found it at 846 F.3d 795.
DAWG BONE: SOMETIMES IT’S BETTER TO SIT AND LISTEN.
File this one under: FIRST AMENDMENT
Tomorrow: Bond money for band uniforms?