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.

NEXT: Poetry Monday!: "When I Was One-and-Twenty" by A.E. Housman

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  1. If the people are sovereign and 1A exists, then the ordinance is alien. The overlords do not wish to hear the true thoughts of the peasants, so a muzzle is applied. Standards of behaviour are only brought by those in fear of rebellion...or just another page out of the Talmud to rule the goy.

  2. I have attended, in various capacities, hundreds of city and county commission and quasi-judicial board meetings. Almost without exception, I have observed the best way to sabotage one's cause is to act like a jackass during public comments; it's a fool's strategy. Beyond that, disruptive behavior in chambers degrades the procedures necessary for good government.

  3. As ever, I'm curious why a ban on "picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers" is crystal clear in its ban in solitary dancing with headphones on, but the language at issue in this case is so vague as to offend the shades of Jefferson and Madison.

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