Public Comment Policy Overly Broad and Vague Under First Amendment and more...

Public Comment Policy Overly Broad and Vague Under First Amendment

In Merriott v. City of Bossier City, the Fifth Circuit Court of Appeals held that a city's "decorum" policy for city meetings violated the First Amendment because it was overly broad as well as vague in prohibiting personal, impertinent, and slanderous remarks and "becoming boisterous" during public comment.

An online journalist attended city council meetings where the city clerk read from the city's rules of decorum for public comment. Those rules included restrictions on cell phone usage, imposed time limits on speakers, and required the audience to maintain decorum. At one of the meetings, the city clerk read the following statement:

Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council unless permission to continue by [sic] granted by a majority vote of the Council” (the “Policy”)....All remarks shall be addressed to the Council as a body and not to any member thereof. No questions shall be asked a [sic] Council person or the mayor except through the meeting chair. All other audience members are asked to please observe the meeting quietly. City Council appointed Sergeant at Arms have been instructed to maintain decorum and ask anyone in violation to step out of the meeting. Merriott again “criticiz[ed] the Council for failing to listen to the Mayor and the citizens.

The journalist spoke during public comment at several meetings and criticized the city on a decision relating to term limits. He was interrupted by councilmembers reminding him of the decorum rules. After one of the meetings, the journalist wrote a letter to the city, requesting the council respect his First Amendment rights and not interrupt him during public comment. At the next meeting, he was again interrupted during public comment and threatened with removal. He then sued, alleging violations of the state's open meetings laws and his First Amendment rights. The district court dismissed his case, and he appealed.

The Fifth Circuit Court of Appeals reversed part of the dismissal of his case, finding that the journalist had plausibly alleged in his complaint that the city's public comment policy was unconstitutional. First, the Court found that the policy's prohibition on "personal" remarks was too broad because its enforcement could capture protected free speech, such as criticism of individual councilmembers. Second, the Court found that the prohibition on "impertinent" remarks was also too broad because it allows the city council to decide which comments are permissible at its whim. Third, the Court struck down the policy's ban on "slanderous" remarks, finding that it was too broad because it placed a speaker in doubt about what he or she could say about public officials and public figures. Fourth, the Court found that the policy's ban on persons who "become boisterous" was too broad because it went beyond conduct and would also apply to speech, implicating the First Amendment. The Court also found the policy to be too vague because the terms "personal" and "impertinent" were undefined and, therefore, failed to provide speakers with a "reasonable opportunity to know what conduct is prohibited."

In sum, the Court found that the city's public comment policy was overly broad and too vague, and remanded the case back to the district court for further proceedings. The Court upheld the district court's findings in favor of the city on the journalist's open meetings act and content-based discrimination claims, however.

Although this case is out of the Fifth Circuit (which does not cover Illinois), it is consistent with Illinois Attorney General opinions and court rulings that question public comment policies that go beyond regulating conduct.

Court Sends Social Media Defamation Case Back to Trial Court to Award Compensatory Damages

Although this case does not involve local governments, it is an interesting case involving social media posts and a defamation lawsuit. Sullivan v. Schiman.

A patient posted on a local "updates and information" Facebook page about a doctor she had seen in the emergency room. Her post named the doctor and claimed that he had sexually assaulted her in giving a rectal examination. That Facebook post was then made a "featured post" by the Facebook page's administrator, which meant it was the first post on that Facebook page. When the doctor learned about the post, he filed a complaint against both the patient and the Facebook page's administrator alleging defamation "per se" among other claims. The case went to trial, and testimony by a nurse who was present during the exam contradicted the claims made by the patient in her Facebook post. At the end of the trial, the judge found in favor of the doctor on his defamation claim against both defendants, and awarded him $1.00 in nominal damages from both the poster and the page administrator.

The doctor appealed on two grounds. First, the doctor claimed the trial court erred in awarding only $1.00 in damages. Second, the doctor argued that the trial court should have imposed sanctions against the page administrator and his attorney for providing false answers in discovery.

The Appellate Court agreed with the doctor on both issues. First, the Appellate Court ruled that nominal damages were not reasonable in this case where several thousand people saw the Facebook post accusing him of a violent sexual assault, which, among other things, would support an award of compensatory damages rather than only nominal damages. Defamation "per se" occurs when a false statement is so inherently harmful that the damage to a person's reputation is obvious on its face, meaning the doctor did not need to prove actual monetary or special damages. The Appellate Court also found that the trial court abused its discretion in denying sanctions for the discovery violations. The Appellate Court sent the case back to the trial court to enter an appropriate award of damages and to reevaluate the sanctions request.

Court Rejects Excessive Force Claim Against Police Officers

The Seventh Circuit Court of Appeals issued a ruling upholding a district court's decision in favor of city police officers in an excessive force case. Davis v. City of Elgin.

Police were dispatched to a home after someone called to report that an individual was threatening his ex-wife and roommate with a shotgun. Police called the suspect, who threatened to harm himself with a knife. The police then surrounded the house but the suspect had already left the home and gone to his neighbors. The suspect came outside to the porch but when he refused police orders to come out further, police fired at him with a non-lethal impact weapon. After the suspect threatened to harm the officer who shot him, officers shot him again. The suspect eventually pled guilty to disorderly conduct, and then filed a lawsuit against the city and the police officers involved in the incident claiming that the officers used excessive force in violation of the Fourth Amendment. The district court ruled against the suspect, and he appealed.

The Seventh Circuit upheld the district court's ruling, finding that the suspect did not establish that the officers violated a clearly established right to be free from a particular use of force. The Court found that the officers had good reason not to want the suspect to go back into the house so he could potentially grab a weapon, and that the officers had knowledge of his earlier threats with a gun against his ex-wife, as well as his threat that he had a knife. In sum, the Court found that the officers had qualified immunity. The Court also held that the suspect did not meet his burden to show a theory of liability against the city itself.

In the Zone: Court Denies Injunction Against Village's Proposed Storm Improvements

To alleviate flooding, a municipality designed and planned certain modifications to its stormwater system. A quarry owner opposed the planned improvements and filed a lawsuit seeking an injunction to stop the municipality from modifying its stormwater system as planned. The trial court denied the injunction and ruled that the municipality possessed an easement across the quarry that was granted by a predecessor owner of the quarry. The owner appealed.

On appeal, the Appellate Court upheld the ruling of the trial court. First, the Court determined that there was substantial evidence that the municipality held an easement across the quarry based on the installation of a stormwater pipe with the agreement of the predecessor quarry owner and language contained in an easement document. Next, the Court rejected the owner's argument that the municipality had abandoned its easement. Finally, the Court held that the owner had not established the elements necessary to obtain an injunction. In sum, the Court upheld the ruling in favor of the municipality. Hanson Aggregates Midwest, Inc. v. Village of La Grange.

Seventh Circuit Upholds "Protect Illinois Communities Act" that Restricts Assault Weapons and Large Capacity Magazines

The Illinois General Assembly enacted the Protect Illinois Communities Act following a deadly shooting at a Chicago suburb’s Independence Day parade. That Act criminalizes the manufacture, sale, delivery, purchase, and possession of assault weapons and large-capacity magazines, among other things. The Act contains a grandfather clause that allows preexisting lawful owners of the regulated items to continue possessing them.

Shortly after the Act was adopted, several lawsuits were filed to challenge its constitutionality. The district court decisions were divided, with one court granting a preliminary injunction against enforcement of the Act and two district courts denying injunctive relief. Those appeals made their way to the Seventh Circuit Court of Appeals, which consolidated the cases and issued a ruling in 2023 that rejected preliminary relief to the challengers and sent the case back to the district courts for further proceedings.

One of the consolidated cases proceeded to a bench trial. The district court in that case held that much of the Act violated the Second Amendment and that the offending provisions were not severable, and the court enjoined enforcement of the Act in its entirety. The defendants appealed to the Seventh Circuit, which recently reversed the ruling and upheld the Act, including its restrictions on AR-15s and thirty-round rifle magazines. Barnett et al., v. Raoul.

First, the Seventh Circuit held that the challengers failed to meet their burden to show that all of the Act's regulations were facially invalid. Second, the Seventh Circuit assumed for purposes of its ruling that the regulated items constituted "arms" under the U.S. Supreme Court's interpretation of the Second Amendment, meaning that they were presumptively entitled to constitutional protection under the Second Amendment. Next, the Seventh Circuit applied the test established by the Supreme Court for challenges under the Second Amendment and determined that the Act was consistent with the principles that "underpin our regulatory tradition" because legislatures have long imposed restrictions on particularly dangerous weapons like those regulated by the Act. Further, the Seventh Circuit found the Act’s “burden on the right of armed self defense" to be minimal. In sum, the Seventh Circuit held that the challengers failed to meet their burden in a facial challenge to the Act's constitutionality under the Second Amendment.

Municipal Minute