Can an Arkansas county judge stop a citizen from reading aloud from a contested book at a quorum court meeting?
Plain-English summary
Senator Sullivan attended a quorum court meeting where book placement in the county library was being discussed. As required by Arkansas law, the quorum court allowed citizens to speak. When one citizen tried to read aloud from one of the contested books, the county judge (who presides over quorum court) stopped him, citing "decorum." Sullivan asked: did that violate the First Amendment or any other constitutional right?
The AG's answer is unsatisfying but accurate: it depends on facts a court would have to find, and the AG cannot make those factual findings. What the AG can do is lay out the legal framework a court would use.
Step 1: Classify the forum. Public property exists on a spectrum:
- Traditional public forums (parks, sidewalks): broad speech protections.
- Designated public forums opened to public expression: similar protections.
- Limited designated public forums opened for some kinds of speech or speakers: narrower, but still protected.
- Nonpublic forums: minimal speech protection.
A county quorum court meeting is a "limited designated public forum." Citizens have a statutory right to attend (A.C.A. § 14-14-109(b)) and quorum courts must adopt rules giving "a reasonable opportunity to participate prior to the final decision." But the meeting is for county business, not general expression, so the forum is limited.
Step 2: Test the restriction. In a limited designated public forum, the government can:
- Impose time, place, and manner regulations that are narrowly tailored to a significant government interest and leave open ample alternative channels.
- Impose content-based restrictions only if they are viewpoint-neutral and reasonable given the forum's purpose.
Courts have upheld decorum rules, restrictions on disruption, limits based on speaker identity, prohibitions on irrelevant or repetitive speech, and "reasonable restrictions to preserve the civility and decorum necessary to further the forum's purpose of conducting public business." But courts have struck down decorum rules that operate as viewpoint discrimination (e.g., prohibiting "abusive" or "antagonistic" comments in ways that target one side of an issue).
Step 3: Apply the law to facts. The constitutional question turns on whether the county judge applied his decorum policy evenhandedly. If the same judge would stop any citizen reading aloud from any text (offensive or not), the restriction is more likely to pass. If he would let a citizen read aloud from a sanitized passage but stop only the contested-book reader, the restriction looks like viewpoint discrimination and likely fails. The AG cannot assess that fact pattern from the request alone.
Equal protection. If the judge selectively suppressed protected speech, the citizen might also have an equal-protection claim. But in practice the analysis is the same as the First Amendment analysis (per Schnekloth v. Deakins), so the claims rise and fall together.
What this means for you
County judges presiding over quorum courts
Two rules. First, write down your decorum policy in advance. A consistently-applied written rule (no reading aloud from any source longer than a certain time, no profanity, no personal attacks, no audio or visual aids without prior approval) is much more defensible than ad hoc rulings. Second, apply it evenhandedly. The hardest cases are where the policy permits one viewpoint's speech while functionally blocking another's. Courts read those patterns as viewpoint discrimination even when the on-paper rule is content-neutral.
If the policy is "no reading aloud from books," apply it to every book, not just contested ones. If the policy is "comments must be brief and on point," cut off long-winded supporters as readily as long-winded opponents.
When in doubt, lean toward letting the speech happen. The downside of stopping speech is a constitutional lawsuit; the downside of letting an extra paragraph through is mild discomfort.
Quorum court members and county attorneys
Help the county judge develop and document the policy in advance. After the fact, it is hard to reconstruct whether a decorum stop was evenhanded; ahead of time, a written policy is straightforward. Consider:
- A maximum speaking time per citizen.
- Limits on disruptive conduct (clearly defined).
- Pre-clearance for AV materials.
- A procedure for warning before stopping.
- A neutral basis for ending repetitive or off-topic comments.
When a citizen complains about a decorum stop, your defensible position requires evidence that the policy was applied to others the same way. Keep meeting recordings and minutes.
Citizens speaking at quorum courts
Your right to participate is real but limited. The court can impose reasonable rules on how, when, and how long you speak. Reading from a book may or may not fall within "reasonable speech" depending on context: if you are reading from a contested book to make a relevant point about the policy issue under discussion, your case is stronger; if the book is unrelated to the agenda item, the court has more authority to limit you.
If you believe the decorum stop was viewpoint-based:
- Get a copy of the recording or minutes.
- Document whether other speakers (especially on the other side) were treated the same way.
- Consult a First Amendment attorney about a § 1983 claim.
But pick your battles. A single decorum stop, even if questionable, may not be worth the litigation cost unless you have strong viewpoint-discrimination evidence.
Book-challenge advocates
The substantive issue (book placement in the library) involves separate legal analysis under library statutes, the First Amendment as it applies to public libraries (Pico v. Board of Education and similar cases), and state-specific library access law. The decorum issue at the quorum court meeting is procedural. They are different fights. If the decorum rule is suppressing your side of the substantive debate, that is a more concerning pattern than a one-off stop.
First Amendment attorneys
The interesting questions in this opinion are at the margins of Cornelius and Perry: how far can decorum extend before it becomes content discrimination, and what counts as evenhanded application? The split in circuits between cases like Steinburg (upholding "decorum to further forum purpose") and Ison (striking down "abusive/antagonistic" rules as viewpoint discrimination) is alive. Arkansas county quorum courts will produce facts for both sides.
Common questions
The county judge said reading from a book was "disruptive." Does that justify the stop?
Maybe. Disruption is a recognized basis for limits in a limited designated public forum. But the court would assess whether the reading was actually disrupting the meeting (interrupting business, exceeding time limits, drowning out speakers) or just making the audience uncomfortable with the book's content. Discomfort is not disruption.
Can the quorum court ban all citizen comment on a topic?
Once the court has opened the meeting to public participation under A.C.A. § 14-14-109(b), it has created a limited designated public forum. Banning a topic from comment that is on the meeting's agenda is content discrimination and would face strict scrutiny. The court can keep comments on agenda items, but it cannot exclude one side of the agenda topic.
What if the citizen was genuinely reading something obscene?
Time, place, and manner restrictions can address truly obscene content (which has its own narrow First Amendment definition under Miller v. California). Most contested-book content does not meet the obscenity standard. The fact that a book is challenged or "objectionable" does not make it obscene.
Does the citizen have a remedy?
A § 1983 federal civil-rights action against the county judge in his official capacity for prospective relief, and possibly against him personally (subject to qualified immunity) for damages. The merits depend heavily on the facts.
Could the citizen invoke equal protection?
Yes, but the standards mirror the First Amendment standard, so the claims rise and fall together (per the cases this opinion cites). Filing both does not give a separate path.
Does this mean any decorum rule is risky?
No. A consistently-applied, viewpoint-neutral, narrowly-tailored decorum rule is on solid footing. The risk arises when the rule is applied unevenly or when its terms (like "antagonistic" or "abusive") are vague enough to permit selective enforcement.
Background and statutory framework
Arkansas county quorum courts are governed by A.C.A. ch. 14, subch. 14. Section 14-14-109(b) requires public attendance and rules permitting public participation. Section 14-14-904(d)(1)(A) makes the county judge the presiding officer.
The First Amendment analysis applies to state and local governments through the Fourteenth Amendment (Thornhill v. Alabama, 310 U.S. 88 (1940)). The forum-analysis framework starts with Perry Educ. Ass'n (1983) and runs through Cornelius (1985), ISKCON (1992), and many others.
The Eighth Circuit recognized a county quorum court meeting as a limited designated public forum in Schnekloth v. Deakins, the western-Arkansas district court case cited here. The Eighth Circuit's Bowman v. White, 444 F.3d 967 (2006), provides the limited/unlimited designated forum distinction.
The doctrinal split on decorum rules is between cases like Steinburg v. Chesterfield County Planning Com'n, 527 F.3d 377 (4th Cir. 2008), and Dyer v. Atlanta Independent School System, 852 Fed. Appx. 397 (11th Cir. 2021) (decorum can permit limits), and cases like Ison v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887 (6th Cir. 2021), and Marshall v. Amuso, 571 F. Supp. 3d 412 (E.D. Pa. 2021) (vague decorum rules can be viewpoint discrimination).
The First Amendment / Equal Protection convergence is from Schnekloth and Ill. Liberty PAC v. Madigan, 902 F. Supp. 2d 1113 (N.D. Ill. 2012).
Citations
- A.C.A. § 14-14-109(b) (public participation in quorum court meetings)
- A.C.A. § 14-14-904(d)(1)(A) (county judge as presiding officer)
- Thornhill v. Alabama, 310 U.S. 88 (1940)
- Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37 (1983)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985)
- United States v. Grace, 461 U.S. 171 (1983)
- Adderly v. Florida, 385 U.S. 39 (1966)
- International Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)
- United States v. Kokinda, 497 U.S. 720 (1990)
- Bowman v. White, 444 F.3d 967 (8th Cir. 2006)
- Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)
- Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 864 F.3d 905 (8th Cir. 2017)
- Green v. Nocciero, 676 F.3d 748 (8th Cir. 2012)
- Steinburg v. Chesterfield County Planning Com'n, 527 F.3d 377 (4th Cir. 2008)
- Dyer v. Atlanta Independent School System, 852 Fed. Appx. 397 (11th Cir. 2021)
- White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990)
- Davison v. Rose, 19 F.4th 626 (4th Cir. 2021)
- 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)
- Schnekloth v. Deakins, No. 21-CV-5131, 2022 WL 1050380 (W.D. Ark. Apr. 7, 2022)
- Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d Cir. 2018)
- Ill. Liberty PAC v. Madigan, 902 F. Supp. 2d 1113 (N.D. Ill. 2012)
Source
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. But the constitutionally protected right to free speech is not absolute, even when the platform for speech involves public property. As the U.S. Supreme Court has observed, "Nothing in the Constitution requires the Government freely 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." 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." And like a private property owner, the government may prohibit some forms of speech on property it owns and controls.
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. 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.
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. 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." Designated public forums can be further categorized as being either "limited" or "unlimited" in nature. 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." 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."
A county quorum court meeting is a limited designated public forum. 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." 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." Any content-based restrictions must be viewpoint-neutral and reasonable, given the forum's purpose.
A court asked to determine whether a governmental regulation of speech is constitutional will consider the regulation's content and application. 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, prohibit disruption and require decorum, limit a person's ability to speak based on the "identity or status of the speaker," stop speech if it becomes irrelevant or repetitive, "restrict access for reasons of manageability or the lack of resources to meet total demand," prohibit personal attacks and harassment, and impose "reasonable restrictions to preserve the civility and decorum necessary to further the forum's purpose of conducting public business." But in other cases, courts have held that policies prohibiting comments that are abusive, personally directed, antagonistic, or disruptive are impermissible viewpoint discrimination in violation of the First Amendment. 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." But as a practical matter, it makes no difference whether the claim is framed under the First Amendment or the Equal Protection Clause. Because the applicable standards are the same, First Amendment and Equal Protection claims "rise and fall together."
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General