Over the past several months, a number of complaints and issues have arisen about when citizens can speak at public meetings. New Mexico’s Open Meetings Act does not require public bodies to provide a forum for the public to participate, but once they do, First Amendment issues kick in.
Of course, the best policy is to allow public input so most government bodies set aside a “public comment” or “general comment” period, usually at the beginning or end of a meeting. The government entity can then impose reasonable time place and manner restrictions. For example, speakers may be limited to three minutes or must confine their comments to an item already on the agenda. The New Mexico Foundation for Open Government has developed guidelines that public bodies can adopt in conducting the public comment sections of meetings. For a copy of the suggested policy, click here.
Once a public comment forum is created, public officials must use caution in allowing citizens to speak freely because First Amendment principles must be honored. For example, speakers cannot be prohibited from criticizing public officials. Two recent decisions in the United States District Court in New Mexico resulted in injunctions against public bodies who tried to limit citizen speech. See MacQuigg vs. Albuquerque APS and Griffen vs. Village of Ruidoso. In both of those lower court decision, federal judges warned that public comment periods were “limited public forums.” Although order could be preserved, government could not curtail or stifle speech which criticized a board’s actions.
Some government bodies require prior notice or registration on a sign-up sheet before the public can speak. Such policies would pass constitutional muster provided they are fairly and neutrally enforced.