The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Court Blocks Enforcement of Oyster Bay (N.Y.) Ban on "Insolent … Remarks" & "Unacceptable Behavior" in Town Council Hearings


The ordinance:

Speakers [during the public comment period] shall observe the commonly accepted rules of courtesy, decorum, dignity and good taste and shall not use foul language, display unacceptable behavior, or be disruptive of the proceedings….

Any person making offensive, insulting, threatening, insolent, slanderous or obscene remarks or gestures, or who become boisterous, or who makes threats against any person or against public order, and security while in the Board Room, either while speaking at the podium or as a member of the audience, shall be forthwith removed at the direction of the presiding office.

Any person removed from a public meeting at the direction of the presiding officer may be charged with disorderly conduct in accordance with New York State Penal Law Section 240.20.

Judge Gary R. Brown (E.D.N.Y.) has just concluded (McKenna v. Town of Oyster Bay) that this violated speakers' rights, largely because many of the terms were unconstitutionally vague. If this were a moot court problem, the judge mentioned, it would be condemned as too easy. (I'm paraphrasing here, based on what I heard at the oral argument just now.)

I think a clearer rule might well be constitutional; a public comment period at a meeting is generally viewed as a "limited public forum," where reasonable, viewpoint-neutral restrictions are permissible. It's possible that a flat ban on the use of vulgarities, for instance, might be constitutional. (Truly threatening remarks, of course, can also be banned, and can indeed be criminalized in general, not just in a limited public forum.)

But this set of restrictions, the court held, didn't qualify; the court therefore issued a temporary restraining order blocking enforcement of the ordinance. If a written order is issued, I'll add a link.

UPDATE: A written order was issued indicating that the motion for a preliminary injunction was granted, but without a detailed opinion.