Cities and the First Amendment, or How To Avoid Violating Your Citizens’ Free Speech Rights
Any time any government agency limits the rights of citizens to speak, assemble or practice their religion, those limitations could trigger constitutional issues and those issues could become a real legal headache for that government under the First Amendment.
City officials may not even realize that they are creating free speech questions as they conduct the business of the city, but the truth is that the First Amendment permeates many facets of city government. Here are a few areas where cities should be aware of potential issues that could arise.
While no city is required to have a social media presence at all, the instant a city creates a Facebook, Twitter, or other social media account, there are free speech issues at play. Citizens can, and will, use social media to criticize the city and its officials, and the city needs to be careful not to delete, edit, or otherwise censor any postings based on the viewpoint of the poster or the content of the posts themselves. The city might want to adopt a policy, for example, that personal attacks, vulgarity, and threats of violence or criminality will be deleted. This kind of policy is probably constitutional as long as it is applied neutrally and consistently. The policy should be clear and visible to all commenters before any deletions are made, and the city should be careful not to use the policy as a pretense to delete criticisms of the city or its officials.
Another tricky issue involves comments made by city officials or employees on social media. A Texas school district superintendent recently resigned after posting a racist remark on Facebook about Texans quarterback Deshaun Watson. However, if the superintendent had not resigned, could the district have legally disciplined or terminated him? The answer is a very definite “maybe,” but the courts have generally held that if a public employee is speaking as part of his official job duties, he has no free speech protection, but an off-the-job comment about a matter of private concern would be protected. Was the superintendent’s private comment about Watson a matter of public concern? The answer is unclear, as well as the question of whether the comment would be so inflammatory as to cause disharmony that interferes with the smooth function of the workplace. The takeaway from all this is that cities should tread lightly before disciplining employees or officers for their speech.
Permits and fees
Another potential area of concern is when a city requires a permit or charges a fee for a public speech, or parade, or protest, any type of public gathering. Again, the watchword for the city is “content-neutral.” City officials should not deny permits, or charge differing fees, based on the content of the planned march, gathering, or protest. An ordinance that requires every public display to apply for a permit and to pay the same amount for a fee is on much safer ground than an ordinance that states, for example, that the city “may require a permit fee in an amount not to exceed $1,000.” If there is a city official who approves or denies permits and charges different fees for different groups, there could be constitutional issues invoked. By the same token, the governmental body may make reasonable “time, place, and manner” restrictions on the public protest itself, but the key word is “reasonable.” Restricting all public demonstrations to between 3:00 and 3:15 a.m. on Tuesdays would most likely not be seen as a reasonable restriction.
Over the past few decades, there has been a dramatic increase in constitutional litigation over cities’ use of zoning to regulate certain land uses, particularly in two areas: (1) sexually oriented businesses (“SOBs”) and (2) signs and billboards. The Supreme Court has ruled that municipalities may license and regulate SOBs for purposes unrelated to the adult entertainment they provide, such as distancing requirements to keep SOBs away from schools, churches, playgrounds, and each other. However, the intent of the ordinance must be to address the purported negative secondary effects of such businesses – increased crime, lower property values, etc. – and not to censor or prohibit the entertainment itself, which is protected by the First Amendment.
With signs and billboards, again, the Supreme Court has tightened the noose on acceptable regulations in the recent past. A sign ordinance prohibiting political or election signs is clearly unconstitutional and always has been; however, more recent decisions go a step further and hold that any content-based restriction is out of bounds. One simple way to put it is that “if you have to read the sign to know if it violates your ordinance, there’s something wrong with your ordinance.” Cities can still regulate the size and placement of signs and billboards, prohibit certain types of lighting, etc., but any restrictions that address what is written on the sign may be problematic.
There are plenty of other areas where a city might find itself in the middle of a First Amendment dispute. Whenever a city does anything that might restrict or curtail the speech of its citizens, it needs to be careful, and consult with a qualified municipal attorney to draft ordinances and regulations that are narrowly tailored and impact free speech in a neutral and consistent way.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.