Sunshine Act language on public comments could yield complaints of censorship
Do you have a constitutional right to voice your opinion at local public government meetings? The answer is surprising and a bit complicated.
For starters, the Constitution does not explicitly give residents the right to speak at local government meetings. The Supreme Court made that clear in 1915, and Justice Sandra Day O’Connor repeated that ruling in 1984, when she said that “the Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy.”
That privilege in Pennsylvania comes from Section 710 of the state’s Sunshine Act. The Act’s first version in 1974 did not give residents the ability to comment at public meetings. Many local meetings, by that point, allowed some public comments, but no standard rules existed across the state.
In the early 1990s, Michael Giannetta from Scott Township in Lackawanna County led a campaign for public comments after he was almost removed from a meeting for speaking to township supervisors without giving four days’ notice. Political leaders such as Rep. Edward Staback, D-Lackawanna, backed Giannetta’s efforts, along with the Pennsylvania Newspaper Publishers’ Association and Common Cause. The amended Sunshine Act in 1993 put in place the public comment rules now used at local government meetings in Pennsylvania.
That language, however, is still open to debate. The current Sunshine Act allows residents appearing before a local council or board, to “comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action.”
“Our prime concern,” Rep. Staback told the Scranton Tribune in 1993, “was that residents and taxpayers be given an opportunity to voice their opinions and comments on matters of concern” not limited to agenda items.
But today, local government boards and councils may limit public comment to only agenda items. And state court decisions support that policy. In Alekseev v. City Council of City of Philadelphia (2009), the Commonwealth Court said Philadelphia City Council could limit comments to agenda items. In 2015, a federal court reached the same conclusion that “matters of concern” were limited to agenda subjects.
Once a resident speaks at a public meeting, the other rules are clear-cut. The First Amendment protects a speaker’s ability to express their thoughts, but not if their actions provoke imminent unlawful action, true threats or fighting, defame someone, or contain obscenities. Courts have upheld the Sunshine Act’s language permitting a local council or board to place time limits on public speech, as needed, to conduct business.
So what are the practical limits set by these rules? Could a local council block residents from complaining about road conditions if they are not on the agenda? Could a school board ban residents from talking about a local political issue if it is not on an agenda? The Sunshine Act’s vague language and recent court decisions leave those decisions up to local elected officials and their lawyers to figure out. It is not hard to imagine in today’s political environment that we’ll see lawsuits over these questions if residents feel censored without cause.
Perhaps it is time for state lawmakers to revisit the Sunshine Act’s public comment section language, to make sure the rules are the same for everyone across the state, which was the intent back in 1993. Solving that matter of concern would benefit all residents and taxpayers.
Scott Bomboy serves on Perkasie Borough Council and has frequently written about local government and constitutional issues.
This article originally appeared on The Intelligencer: Sunshine Act language on public comments could spur censorship charges
