Can an Arkansas county judge stop a citizen from reading aloud from a contested book at a quorum court meeting?

Plain-English summary

Senator Dan Sullivan asked whether a county judge violated a citizen's rights by stopping the citizen from reading aloud from a contested book during public comment at a quorum court meeting. The judge cited “decorum.” The Attorney General did not decide whether the stop was lawful: he said a court would need facts the request did not supply.

The AG classified a quorum court meeting as a limited designated public forum. State law requires the public to be allowed to attend and gives citizens a reasonable opportunity to participate before a final decision. The meeting remains limited to county business. Within that forum, the government may adopt reasonable time, place, and manner rules. The AG said any content-based restriction must be viewpoint-neutral and reasonable for the forum's purpose.

The opinion cites decisions permitting some limits on subject matter, disruption, irrelevant or repetitive speech, and decorum. It also cites decisions finding some “abusive,” “antagonistic,” or disruptive-speech rules to discriminate by viewpoint. The AG said application of a policy, whether disparate or evenhanded, can explain different results. He therefore declined to decide the particular incident. A discriminatory suppression of protected speech might also support an equal-protection claim, though the opinion says that claim and the First Amendment claim would use the same standards here.

What this means for you

Quorum court officials

The opinion permits reasonable rules suited to the meeting's purpose and emphasizes how they are applied. It does not approve the county judge's specific decision to stop this reading or prescribe a particular decorum policy.

Citizens attending a meeting

The right to participate is subject to reasonable forum rules. The AG found the record too thin to say whether the reported restriction crossed the constitutional line. A court would need to examine the policy's content and its application.

Common questions

Does every subject-matter restriction face strict scrutiny? No. The opinion says government may regulate subject matter in a limited designated public forum. Content-based restrictions must be viewpoint-neutral and reasonable in light of the forum's purpose.

Did the AG find the county judge violated the First Amendment? No. He said he lacked sufficient facts and only a court informed of the circumstances could decide.

Could equal protection also be relevant?
Possibly, if protected speech was suppressed discriminatorily. The opinion describes a separate evidentiary showing for such a claim and says the applicable standards would rise and fall together here.

Background and statutory framework

A.C.A. § 14-14-109(b) requires quorum courts to give citizens a reasonable opportunity to participate before a final decision; § 14-14-904(d)(1)(A) makes the county judge the presiding officer. Footnote 13 cites Schnekloth v. Deakins, a federal district court decision in the Western District of Arkansas, for the forum classification. The opinion's later footnotes collect cases on decorum and viewpoint discrimination.

Citations

• A.C.A. § 14-14-109(b)
• A.C.A. § 14-14-904(d)(1)(A)
• Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37 (1983)
• Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)
• Green v. Nocciero, 676 F.3d 748 (8th Cir. 2012)
• Schnekloth v. Deakins, No. 21-CV-5131, 2022 WL 1050380 (W.D. Ark. Apr. 7, 2022)
• Ison v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887 (6th Cir. 2021)
• Marshall v. Amuso, 571 F. Supp. 3d 412 (E.D. Pa. 2021)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-042

July 31, 2023

The Honorable Dan Sullivan
State Senator
Post Office Box 19406
Jonesboro, Arkansas 72403

Dear Senator Sullivan:
I am writing in response to your request for an opinion regarding a citizen’s right to speak at a quorum court meeting. You report that you recently attended a quorum court meeting regarding book placement in the county library. As required by law, the quorum court allowed citizens to speak at the meeting. But when one community member attempted to read aloud from a contested book, the county judge did not let that him do so, citing “decorum.” You ask whether the county judge’s actions violate “the citizen’s right to free speech or any other rights.”

RESPONSE

I cannot conclusively answer your question because I lack sufficient facts to determine whether the county judge unlawfully restricted the citizen’s speech at the quorum court meeting. Only a court fully apprised of all the relevant facts and circumstances can make this determination. I have, however, set forth below the legal analysis that a court would apply in making that determination.

DISCUSSION
The First Amendment to the U.S. Constitution, which applies to state and local governments through the Fourteenth Amendment, prohibits government action that abridges the freedom of speech. 1 But the constitutionally protected right to free speech is not absolute, even when the platform for speech involves public property. 2 As the U.S. Supreme Court has observed, “Nothing in the Constitution requires the Government freely

1
E.g., Thornhill v. Alabama, 310 U.S. 88, 95 (1940).
2
See Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983) (“The First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” (internal citations omitted)). The Honorable Dan Sullivan State Senator Opinion No. 2023-042 Page 2

to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” 3 Rather, the government, “no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.” 4 And like a private property owner, the government may prohibit some forms of speech on property it owns and controls. 5

The extent to which government may exercise control over expressive activities on its property depends on the nature of the property involved and its intended use. 6 To determine whether the government has unconstitutionally restricted protected speech, courts use the “forum analysis,” asking: (1) what type of forum the property constitutes and (2) what kind of restrictions the government has imposed. 7

Public property can be classified along a spectrum, ranging from public forums at one end, which encompass spaces that more closely resemble the traditional public square and therefore offer more freedom to speak, and nonpublic forums at the other end, which are not devoted to “assembly and debate” and therefore offer fewer protections for speech. 8 In the middle are “designated public forums,” which are spaces that have been “opened for use by the public as a place for expressive activity.” 9 Designated public forums can be further categorized as being either “limited” or “unlimited” in nature. 10 A limited designated public forum is one that the government has opened to the public but has “limit[ed] the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” 11 By contrast, an unlimited designated public forum “is a forum designated for expressive conduct by the government but not limited to a particular type of speech or speaker.” 12

3
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985).
4
United States v. Grace, 461 U.S. 171, 178 (1983) (quoting Adderly v. Florida, 385 U.S. 39, 47 (1966)).
5
See International Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (ISKCON) (“…the government need not permit all forms of speech on property that it owns and controls.”). 6 See United States v. Kokinda, 497 U.S.720, 726 (1990).
7
See Cornelius, 473 U.S. at 797.
8
Perry Educ. Ass’n, 460 U.S. at 45–46.
9
Id. at 45.
10
ISKCON, 505 U.S. at 678.
11
Bowman v. White, 444 F.3d 967, 976 (8th Cir. 2006) (internal citations omitted).
12
Id.
The Honorable Dan Sullivan
State Senator
Opinion No. 2023-042
Page 3

A county quorum court meeting is a limited designated public forum. 13 By statute, the public is entitled to attend meetings of the quorum court, which must “adopt rules” that “afford citizens a reasonable opportunity to participate prior to the final decision.” 14 But because the meetings are limited to discussion of county business, they are properly considered limited public forums.

A government that has created a limited designated public forum may institute reasonable time, place, and manner regulations that “are narrowly tailored to serve a significant government interest” and that “leave open ample alternative channels of communication.” 15 Any content-based restrictions must be viewpoint-neutral and reasonable, given the forum’s purpose. 16

A court asked to determine whether a governmental regulation of speech is constitutional will consider the regulation’s content and application. 17 The outcome of this consideration in any given case depends heavily on its facts. For example, in some cases, courts have held that government acting in a limited designated public forum may regulate the subject matter under discussion, 18 prohibit disruption and require decorum, 19 limit a person’s ability to speak based on the “identity or status of the speaker,” 20 stop speech if it becomes irrelevant or repetitive, 21 “restrict access for reasons of manageability or the lack of resources to meet total demand,” 22 prohibit personal attacks and harassment, 23 and impose “reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.” 24 But in other cases, courts have held that

13
See Schnekloth v. Deakins, No. 21-CV-5131, 2022 WL 1050380, at *5 (W.D. Ark. Apr. 7, 2022).
14
A.C.A. § 14-14-109(b). Note that state law also appoints the county judge as the presiding officer at quorum court meetings. See A.C.A. § 14-14-904(d)(1)(A). 15 Perry Educ. Ass’n, 460 U.S. at 45.
16
Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 392–93 (1993).
17
See, e.g., Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 864 F.3d 905 (8th Cir. 2017) (discussing facial and as-applied First Amendment challenges). 18 See Green v. Nocciero, 676 F.3d 748, 753–54 (8th Cir. 2012); Steinburg v. Chesterfield County Planning Com’n, 527 F.3d 377, 385 (4th Cir. 2008). 19 See Dyer v. Atlanta Independent School System, 852 Fed. Appx. 397, 402 (11th Cir. 2021), cert. denied, 142 S. Ct. 484 (2021). 20 Green, 676 F.3d at 753 (internal citations omitted).
21
See White v. City of Norwalk, 900 F.2d 1421, 1425–26 (9th Cir. 1990).
22
Green, 676 F.3d at 753 (internal citations omitted).
23
See Davison v. Rose, 19 F.4th 626, 635–36 (4th Cir. 2021).
The Honorable Dan Sullivan
State Senator
Opinion No. 2023-042
Page 4

policies prohibiting comments that are abusive, personally directed, antagonistic, or disruptive are impermissible viewpoint discrimination in violation of the First Amendment. 25 These seemingly contradictory rulings can often by explained by how a government entity has implemented a particular policy—either in a disparate or evenhanded manner—thus leading courts to reach different conclusions on whether a First Amendment violation has occurred. Again, such inquiries are highly fact-intensive, which is why I cannot definitively conclude whether the county judge’s actions were constitutional.

Finally, you have asked whether the county judge’s actions at the quorum court meeting violated “any other rights” of the citizen. If the county judge suppressed the citizen’s protected speech in a discriminatory manner, it is possible that the citizen has an equal protection claim. To prevail on such a claim, the citizen must show that (1) he was “treated differently from other similarly situated” individuals and (2) “that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” 26 But as a practical matter, it makes no difference whether the claim is framed under the First Amendment or the Equal Protection Clause. 27 Because the applicable standards are the same, 28 First Amendment and Equal Protection claims “rise and fall together.” 29

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

24
Steinburg, 527 F.3d at 385.
25
See Ison v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887 (6th Cir. 2021); Marshall v. Amuso, 571 F. Supp. 3d 412 (E.D. Pa. 2021). 26 Wandering Dago, Inc. v. Destito, 879 F.3d 20, 40 (2d Cir. 2018) (quoting CineSK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)). 27 See Ill. Liberty PAC v. Madigan, 902 F. Supp. 2d 1113, 1126 (N.D. Ill. 2012).
28
Id.
29
Schnekloth, 2022 WL 1050380, at *7.