Ban on "Personal, Impertinent or Slanderous Remarks" in City Council Public Comments Is Unconstitutional

So the Fifth Circuit held a few weeks ago.

In Merriott v. City of Bossier City, decided June 25 by Judge Irma Carrillo Ramirez and joined by Judges Edith Brown Clement and Dana Douglas struck down a City Council public comment policy that

Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council unless permission to continue by [sic] granted by a majority vote of the Council.

The opinion is long, but here's an excerpt of the analysis that holds that the policy is overbroad:

"Personal" is ordinarily understood to mean "of, relating to, or affecting a particular person." And a "remark" is ordinarily understood to mean "the act of remarking," "an expression of opinion or judgment," or "mention of that which deserves attention or notice." To "remark," means "to take notice of" or "to express as an observation or comment."

Based on the ordinary meaning of "personal remarks," the Policy prohibits speakers from uttering an infinite number of protected, relevant statements or questions. For example, a speaker must refrain from: (1) using a councilmember's name for the record; (2) mentioning that a councilmember may have a personal stake in the outcome of a vote; (3) stating that a councilmember engaged in a corrupt act; (4) highlighting that a councilmember had recently been convicted of a crime; (5) claiming that a councilmember lied to the public; (6) suggesting that a councilmember had a conflict of interest; and (7) bringing to public attention that a councilmember had been sued—just to name a few. The Policy forbids a citizen from noting that a councilmember has—even questionably—done anything that may be relevant to the public. The possible applications are unquantifiable, especially when not harnessed by any limiting principle….

This court has not yet considered the constitutionality of a provision that bars "personal remarks," as did the Ninth Circuit did in Acosta v. City of Costa Mesa (9th Cir. 2013). Acosta involved a facial overbreadth challenge to an ordinance governing speech in city council meetings that stated, in relevant part:

It shall be unlawful for any person while addressing the council at a council meeting to violate any of the following rules after being called to order and warned to desist from such conduct: No person shall make any personal, impertinent, profane, insolent, or slanderous remarks.

In holding that the ordinance was facially overbroad, the Ninth Circuit noted that it captured "nothing more than bold criticism of City Council members," but it is a "bedrock principle underlying the First Amendment … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." We agree….

"Impertinent" means "given to or characterized by insolent rudeness" or "not restrained within due or proper bounds especially of propriety or good taste." With no limiting principle, this provision effectively allows the City Council to decide which comments are permissible at its whim. If a councilmember is offended by comments that the Council does "not have the citizenry's best interest in mind," or it is "breaking the law," or "not listening to the demands of its constituents," the Council could simply silence the speaker.

Although we have also not considered whether a prohibition on "impertinent … remarks" runs afoul of the Constitution, Acosta held that a verbatim enactment did. Because the Policy is so unbounded and covers a substantial amount of core First Amendment activity in relation to its legitimate sweep, we agree….

As for the term "slanderous remarks," we held overbroad a portion of a city ordinance that forbade amplification of "slanderous" sound in Reeves v. McConn (5th Cir. 1980). Reeves noted that, under New York Times Co. v. Sullivan (1964), and its progeny, "certain forms of common-law defamation are … protected by the First Amendment, such as statements about public officials unless made with knowledge of the statement's falsity or reckless disregard for its accuracy." Because the ordinance "ma[de] no attempt to distinguish the specific forms of slander that the city may constitutionally prohibit[,]" we concluded that the ordinance's "overbreadth exert[ed] a substantial chill upon speech that is close to the heart of the First Amendment, because it place[d] the speaker in doubt regarding what he [could] say … about public officials and public figures."

Here, "slanderous" is used in the same way against the same backdrop of Sullivan's progeny, and it creates the same "chill." We reaffirm that, standing alone, this proscription is overbroad….

Ordinarily, "boisterous" means "noisily turbulent" or "rowdy." The parties agree that, as used in the Policy, the term refers to both traditional speech and conduct. Under that expansive definition, banging one's hand on the podium, emphatic hand gestures, pointing, crying, clapping, or simply shifting one's tone could trigger application of the Policy, as could any remark deemed "rowdy" or inflammatory. Again, the potential applications are limitless….

Bossier City set the scope of its Policy, and it is nearly limitless…. [T]he Policy "encompasses a substantial number of unconstitutional applications 'judged in relation to [its] plainly legitimate sweep[.]'" … An enactment's legitimate sweep may constitutionally encompass disturbances to regulate the manner of speech in the government's forum for the government's purpose, but it cannot do so in swaths so broad that nearly anything that could be uttered could fall within its reach. That is especially true where, as here, the purpose of the City Council meeting is to host debate….

The court also concluded that the policy was unconstitutionally vague, and mostly unconstitutionally viewpoint-based:

This court has not considered whether an enactment like the Policy here is permissible, but the Sixth Circuit did in Ison v. Madison Local School District Board of Education (6th Cir. 2021). It held that a school board policy restricting "abusive, personally directed, and antagonistic speech" during board meetings constituted unconstitutional viewpoint discrimination. The Policy "contain[ed] no definitions," but summary judgment evidence showed that the school board understood "'abusive' to mean 'hostile to one's feelings or towards [sic] in your manner of speech'"; "'antagonistic' to mean 'to antagonize with hostility toward oneself or one's person'"; and "'personally directed' to mean 'either harassing or abusive statements directed at someone individually.'"

Relying on dictionary definitions, the Sixth Circuit agreed that "by definition, [the policy] prohibit[ed] speech opposing the [school] [b]oard." The terms "plainly fit in the 'broad' scope of impermissible viewpoint discrimination because, like in Matal [and] Iancu, … they prohibit[ed] speech purely because it disparages or offends."

Ison is persuasive. Like the school board policy in Ison, the Policy here turns on the perception of the individual councilmembers. Merriott has plausibly alleged that its prohibition against "personal[,]" "impertinent[,]" and "slanderous" speech constitutes unconstitutional viewpoint discrimination. The prohibition on becoming "boisterous" is not plausibly viewpoint based, however, because it is entirely viewpoint neutral….

Bruce Warfield Hamilton and Anna Cleveland (Tulane First Amendment Law Clinic) represent plaintiff.