Free Speech in Texas Depends on Where You Stand, Literally
Have you watched the recent town hall meetings? Congressmen and senators getting yelled at by either paid protestors or angry constituents. Is this democracy? Do you have a right to address your leaders? Must you be civil or can you exercise a little Civil Disobedience à la Thoreau? Do you, like me, have a little rebel streak with a dash of authority issues? Does a citizen of a city have a right to complain to a city council? The answer surprisingly is it depends where you are literally standing.
In Texas, cities must conduct meetings pursuant to the Open Meetings Act which requires certain public notices. Open Meetings means the meetings must have a posted agenda of items to discuss and no subject can be discussed if it is not on the agenda. Traditionally, cities put an item on an agenda allowing for public comments. Usually, this is at the beginning of a meeting and sometimes the mayor or presiding officer will allow comments from the audience when various agenda items are brought up. However, speaking at an opening meeting is not a right, but a privilege.
Public hearings are sometimes required before certain ordinances are passed. But with public hearings, the public does have a right to speak and be heard.
The First Amendment right of free speech guarantees that we as Americans have the right to speak. As one court said the loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury. But that right is not unlimited. Liberty Independent School District took a case to the federal Fifth Circuit Court of Appeals. The court agreed with the school district that a comment section was for the public to air concerns about the school board’s business, but is not an occasion for resolution of personal disagreements with employees. In other words, in a school board meeting you do not have an unlimited right to speak because that meeting is a limited public forum.
There are three categories of forums: traditional public forums; limited public forums and nonpublic forums. Traditional public forums include sidewalks, streets and parks that the public since “time immemorial” has used for assembly and general communication and discussing public questions and the use of such has been part of the privileges, immunities, rights and liberties of citizens. Courts look with strict scrutiny at any attempt by the government to regulate speech in public forums. In limited public forums, however, review of the government’s action to regulate speech must meet a two-part test to not discriminate based on viewpoint and that the regulation is reasonable.
Back to the town halls. Speaking or shouting to your elected official in an event where he or she invited you, a tradition dating back ages, would be classified as a traditional public forum even if it was on school property. But if it was an open meeting by the school board, the limited public forum nature of the meeting would restrict how and what you would say.
Where do you stand on free speech? It depends where you are standing.