Manchester’s Mayor and Board of Alderman recently voted to update their rules to prohibit banners and signs during meetings. They also banned vulgar language and threats during public comment.
The rule change followed protests at several Board of Mayor and Aldermen meetings earlier this year that called for local leaders to adopt a resolution calling for a ceasefire in Gaza.
Manchester’s not the only municipality in New Hampshire to have “civility ordinances,” which are rules that try to limit speech that officials consider inappropriate during public comment.
But New Hampshire’s ACLU and the New England First Amendment Coalition say some of these ordinances could violate the freedom of speech and have called on Manchester to revise theirs.
Brett Johnson is an associate professor at the University of Iowa and the former legal fellow at the New England First Amendment Coalition. He researched civility ordinances across New England, and spoke about them with NHPR’s All Things Considered host Julia Furukawa.
Transcript
What are the kinds of civility ordinances that you found here in New Hampshire?
There are state open meetings laws saying any time there's any kind of an official meeting, the meeting has to be open to the public. But none of the six New England states had any law saying [that] at these meetings, you must have public comment. So those [public comment] rules are a product of each individual city or town.
What I found in these ordinances—a lot of them said nothing at all about rules for public comment. On the one hand, you can say, well, that's great from a First Amendment perspective, anything goes. On the other hand, that might mean that any kind of restriction could be available.
Other categories looked a lot like the one that was recently passed back in May in Manchester. It had a mix of these unprotected legalese categories, lumping them together with categories of speech that would otherwise be protected. That mix really muddies the waters. It's partially constitutional and partially not.
There's a list of what is not allowed in Manchester: profanity, use of vulgar language or fighting words and banners, flags, signs and other items that may create a security concern. What's constitutional to ban and what is not?
Yeah, there's a lot going on in this ordinance. One place to start is what's called time, place or manner restrictions on speech. So the Supreme Court has said, when it comes to regulating speech, if the regulation isn't about the message [but] the manner of the speech, [such as] using a sign or using a flag that is being restricted, that is going to be a valid restriction. It's not saying you can only bring in the American flag. It's [saying] no flags at all.
Certain categories are unprotected speech. Speech that the Supreme Court said, it’s out of bounds. So [that includes] threats, fighting words. You can’t say that, if you engage in those things, you could be held criminally liable for that.
But then, the last one is vulgar language or profanity. The great George Carlin, right, had his seven dirty words monologue. He said there's more words to describe bad words than there are bad words in the English language. There's a degree of subjectivity to that that would render it unconstitutional if it were enforced
So what should local governments be thinking about when they're trying to draft their own rules or ordinances.
The one place that we found that really stuck out above all the rest was Lewiston, Maine. In their rules for public comment say, look, our public comment period is a limited designated public forum. The government said, we're giving this to you, the public, to exercise your rights to speak, to petition your government. They even say in the code, ‘We do not have the right to prohibit disparage rude and other remarks of a personal nature’—so I'm reading this from their code, but then it goes on to say, ‘because of the potential implications including personal liability. We encourage any speakers to subscribe to be accurate in their statements and avoid making personal rude or provocative remarks.’ I think that goes a long way.
I think we could all agree nobody wants every city council meeting to be R-rated with lots of F-bombs dropped. We’d love to have more robust discussion that is civil. That is a worthwhile goal. But the way to get there is more through the Lewiston model of encouraging, being up front with your constituents, having this language in very ethical moral terms, rather than having some legal teeth.
