Right to speak comes to Illinois

Until January 1, 2011, no one in Illinois had a legal right to address a public body at a public meeting. See People v. Thompson, 56 Ill. App. 3d 557, 562 (1978). That changed when the Illinois General Assembly passed and Governor Patrick Quinn signed Public Act 96-1473, effective January 1, 2011, which amended section 2.06 of the Open Meetings Act to provide:

(g) Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body. 5 ILCS 120/2.06(g), added by Public Act 96-1473.

A plain reading of the statute suggests that if there are no rules established and recorded there is no right of the public to address public officials. However woefully drafted, the intent of the legislature is clear: the public has a right to address a public body, and that body has a right to promulgate rules concerning that right. The public policy of Illinois is to give citizens advance notice of and the right to attend all meetings where public business is discussed or acted upon. 5 ILCS 120/1; see also 735 ILCS 110/5 (it is the public policy of the State of Illinois to encourage involvement and free participation of citizens in the process of government... opinions and arguments of citizens are vital to the continuation of representative democracy). Now there is a right to speak.

Even before this change to the Open Meeting Act, some public bodies by either process, custom or ordinance allowed for public comment. The codification of the right to speak before a public body makes it important for a public body to establish rules and publish those rules to those who wish to address the public body. What are the limits on those rules?

The public comment portion of a public meeting is considered a designated public forum (public property intentionally opened for use by the public as a place for expressive activity). See Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167,175-76 (1976); White v. City of Norwalk, 900 F. 2d 1421, 425 (9th Cir. 1990). This limits the ability of a public body to regulate expressive activity. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983). Content-based restrictions are subject to strict scrutiny with the public body required to show its restriction is necessary to serve a compelling state interest and is narrowly drawn to achieve that purpose. Id. at 45-46.

The public body may impose reasonable time, place, and manner regulations that are content neutral if those regulations are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication. Id. Time limits on public comments are reasonable. See Wright v. Anthony, 733 F.2d 575, 577 (8th Cir. 1984) (Three minutes). Public comment limited only to the subjects on the agenda is reasonable. See White v. City of Norwalk, 900 F. 2d 1421, 1425 (9th Cir. 1990). Speakers can be stopped if the comment becomes irrelevant, repetitious, or disruptive. Id. at 1425-26. Public comment cannot be regulated when the motivating ideology, opinion, or perspective of the person is rationale for the regulation. See Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829 (1985).

Public bodies in Illinois should be establishing rules for public comment; rules consistent with well establish case law. Those rules should then be widely published by that public body. ■

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Thomas L. Ciecko is currently General Counsel for the Suburban Bus Division of the Regional Transportation Authority. He is a former Assistant Illinois Attorney General, and former Chief of the Organized Crime Division of the Will County State's Attorney's Office. The opinions expressed in this article are the author's alone and do not necessarily reflect the opinions of the Suburban Bus Division of the Regional Transportation Authority.