The Open Mic, Unplugged: Challenges to Viewpoint-Based Constraints on Public-Comment Periods

Perhaps the purest form of citizen political expression is addressing a government body directly during the public-comment period. Despite its salutary civic benefits, the public-comment period faces escalating threats, with local elected officials imposing rigid controls on speakers. Disturbingly, these rules sometimes are enforced via arrest. The U.S. Supreme Court recently confronted this scenario in Lozman v. City of Riviera Beach, involving the arrest of a citizen-critic who refused to stop using his city council\u27s open-mic period to decry public corruption. While narrowly fact-specific, the Court\u27s June 2018 resolution of the case reaffirms the importance of protecting speakers at government bodies against retaliation for disagreeable views. This Article surveys recent instances in which speakers addressing government bodies were silenced--at times, forcibly--and how courts address both facial and as-applied challenges to restrictions on public comment. The Article also examines the constitutionality of commercially available standard-form policies increasingly adopted by local governments to restrict “insulting” speech, “personal attacks,” and other citizen criticism. It proposes taking the next logical step that the Lozman Court hesitated to take--namely, recognizing a framework to help courts assess all First Amendment retaliation claims by speakers punished for noncompliance with content- or viewpoint-based directives to refrain from speaking. Ultimately, the Article concludes that the simple burden-shifting analysis that the Court found applicable under Fane Lozman\u27s unique set of facts--in which it is the speaker\u27s burden to establish a prima facie case of a speech-punitive cause-and-effect--is in fact the appropriate standard for all such retaliation claims, so that the existence of an independent basis for arrest does not mechanistically defeat a speaker\u27s claim where a retaliatory motive is proven