First Amendment expert: Richmond County public comment policy is unconstitutional

By: By William R. Toler - Editor

ROCKINGHAM — When members of Concerned Citizens of Richmond County found out earlier this year that a county policy forbade them from speaking on an agenda topic during the public comment section of a commissioners’ meeting, they said they felt it was unconstitutional.

A First Amendment expert and law professor agrees.

David L. Hudson Jr., ombudsman for the First Amendment Center, says the policy is “facially content-based.”

“It restricts speech on agenda items but presumably not on other items,” he told the Daily Journal in an email after reviewing the policy. “That is what is called subject-matter or content discrimination, a key principle in First Amendment law.

“Furthermore,” he added, “the policy is not good policy. It would seem logically that agenda items would be the subject of most interest to the public and those concerned.”

The policy in question was adopted by the Richmond County Board of Commissioners Oct. 6, 1997. It establishes a 30-minute time period allotted for public comments.

Dena Cook, clerk to the board of commissioners, said the agenda is usually available online by the Wednesday afternoon prior to the meeting on Tuesday the next week. Copies may also be printed by request by visiting the administration office.

Residents wishing to sign up for public comment must do so by 5 p.m. the Friday before the meeting. A 2008 amendment requires potential speakers to “specify the subject matter or nature of comments to be made.”

Other topics, aside from agenda items, that are off limits are:

• matters which concern the candidacy of a person seeking public office, including the person addressing the board;

• a request that the board consider funding a certain program or activity, either from the current budget or from a future budget; and

• matters in current or anticipated litigation.

Commissioner Thad Ussery, who joined the board in 1994, said the policy came about during a time of “a lot of changes” and “a lot of controversy,” partly surrounding new hog and chicken farms in the county.

“It seemed like we were having discussion (and debate) more than getting anything done,” he said.

Ussery said the policy “straightened out a lot of issues for us” to get things accomplished and helped “to keep the meetings in order.”

“If you’re trying to accomplish something and people want to debate on it, you can’t get anything accomplished,” he said. “We weren’t trying to suppress anyone’s rights.”

The time to list pros and cons, he added, is at a public hearing.

Ussery said the policy has “worked out very well” in the past 20 years and that there weren’t any problems until environmentalists from Asheville (the Dogwood Alliance, which was working with Concerned Citizens of Richmond County) wanted to speak out against Enviva’s coming wood pellet plant, but couldn’t because it was on the agenda.

Pastor Cary Rodgers, associated with CCRC, called the policy provision “systematic, institutional suppression of voices.”

“I can’t speak up if Enviva is actually on the agenda? I have no right to say anything against it? That is un-American.” he said in March. “And this particular policy should be concerning for every citizen in this county, in which you have no right to speak up when something directly affects you.”

Ussery said there has been no discussion on changing the policy since it landed in critics’ crosshairs.

“Something that’s worked all these years, it can’t be too wrong, can it?” he asked.

Kenneth Robinette, board chairman, said the policy stops the meetings from “being a circus” and keeps people from “grandstanding” and disrupting.

“If you really (have) a concern, all you do is call us up…and we’ll address it,” he said, adding that commissioners will give more consideration to the issue. “We’re not trying to ramrod anything.”

Robinette added that county attorney Stephan Futrell has studied the policy and says that it’s legal.

Messages left with Futrell on Wednesday and Thursday were not returned in time for this story.

Hudson said that in light of the 2015 Supreme Court case Reed v. Town of Gilbert, the content discrimination principle applies “with even greater force” in First Amendment law.

In that case, the court held that a sign ordinance in Gilbert, Arizona imposed more stringent restrictions on signs conveying certain messages and that those provisions were “content-based regulations of speech that cannot survive strict scrutiny.”

“When the government restricts speech like this,” Hudson said regarding Richmond County’s public comment policy, “it infringes on one of the most important strands of First Amendment doctrine — the public’s right to receive information and ideas.”

Reach William R. Toler at 910-817-2675 or [email protected]




By William R. Toler