Can the New Mexico Commission for the Blind use Title VII Part B federal funds and Social Security reimbursements for independent living services, and do the Statewide Independent Living Council's proposed public-comment policies violate the First Amendment?

Plain-English summary

Greg Trapp, Executive Director of the New Mexico Commission for the Blind (CFB), asked the AG four questions about federal funding and the First Amendment. The AG addressed all four in a revised opinion (replacing an earlier opinion withdrawn after new information surfaced).

1. Can CFB use Title VII Part B federal funds for independent living services for visually impaired New Mexicans under 55? Yes. Part B funds are intended for independent living for people with significant disabilities. The federal regulations contemplate use by state agencies (including CFB), not just by Centers for Independent Living. CFB can receive Part B funds for this purpose.

2. Is receipt of Part B funds a prerequisite for CFB to use Social Security reimbursements for independent living services? No. The state as a whole receives Part B funds, even when CFB itself does not. Social Security reimbursements (a type of "program income") can be used for independent living services as long as the state-level program is federally subsidized. In practice, CFB must remit the reimbursements to the New Mexico Vocational Rehabilitation Division (the state's "designated state entity") and the Division can then transfer them back to CFB for independent living use.

3. Can CFB use other federal vocational rehabilitation program income (beyond Social Security reimbursements) for independent living? No. Federal regulations limit other program income to vocational rehabilitation purposes. Only the Social Security reimbursements can be transferred to independent living.

4. Do the Statewide Independent Living Council's proposed public-comment policies violate the First Amendment? Yes. Several policies protect SILC members and staff from negative speech but not the public from similar language, and the policies allow praise but not criticism of SILC. That is viewpoint-based discrimination, which is not constitutionally permissible. The policies need to be amended to provide symmetry between attacks on SILC members and attacks on the public, and to be limited to genuinely permissible categories like fighting words or irrelevant personal attacks.

What this means for you

If you administer a state agency receiving federal vocational rehabilitation funds

CFB can use Part B funds for independent living services under New Mexico's approved state plan. The opinion reads the federal definition of "service provider" to include a state agency providing services under a grant or contract from the designated state entity. It also points to 45 C.F.R. § 1329.10(b)(4), which permits support for the "capacities of public or nonprofit agencies and organizations and other entities."

If CFB uses Social Security reimbursements to support independent living services, it must remit them to the Division of Vocational Rehabilitation, the designated state entity. The Division may then repay CFB for those services if it determines repayment is appropriate. CFB may keep the reimbursements when using them for vocational rehabilitation services. Other vocational rehabilitation program income must be used for vocational rehabilitation services and administration.

If you sit on a state board or council that holds public meetings with public comment

Read the First Amendment portion of this opinion carefully. Two specific lessons:

1. Symmetry of protection. If your policy protects board members and staff from "abusive language" or "personal attacks," it must protect the public from the same. Otherwise, the policy is not viewpoint-neutral.
2. No "praise-only" rules. A policy that bans negative comments while allowing positive ones is the textbook viewpoint-based restriction the Griffin v. Bryant (D.N.M. 2014) case struck down.

Permissible time, place, or manner restrictions exist (length of comments, irrelevance, fighting words). Substantive restrictions on viewpoint do not survive constitutional review.

If you are a member of the public who has been silenced at a public meeting

The AG concluded that the proposed SILC policies violate the First Amendment because several provisions protect council members and staff from negative language without comparable protection for the public or a restriction on praise. If your comment was stopped under a similar policy, compare its actual wording and how it was applied with the provisions discussed here and with Griffin v. Bryant before deciding what to do next.

If you are a federal grant administrator or auditor

The opinion says a state agency such as CFB can provide Part B independent living services under a grant or contract from the designated state entity. It also says the designated state entity receives, accounts for, and disburses the state's Part B funds under its approved plan. Check the plan and the proposed use of funds before disbursing money to CFB.

If you are a SILC chair or staff member

Revise the public-comment policies. The opinion gives a roadmap:

• Make protections symmetrical (members and public both protected from genuinely abusive language).
• Limit substantive restrictions to constitutionally permissible categories: fighting words, irrelevant personal attacks, threats, true incitement, obscenity, defamation.
• Allow time, place, and manner restrictions that are content-neutral (length, repetition, off-topic).
• Eliminate "praise-only" or "decorum-favoring SILC" framing.

Common questions

Q: What is Part B of Title VII of the Vocational Rehabilitation Act? A: 29 U.S.C. §§ 796e-0 to -796e-3. The provisions fund state programs for independent living services for individuals with significant disabilities, regardless of age.

Q: What are Centers for Independent Living (CILs)?
A: Centers for Independent Living provide independent living services. The opinion says they may use Part B funds, and that other entities, including CFB, may use those funds too. In the New Mexico allocation described in this opinion, centers receive 82 percent and CFB receives 18 percent.

Q: What is "program income"?
A: Federal regulations define it as gross income generated by a federally-supported activity, including consumer payments, insurance reimbursements, and Social Security reimbursements for vocational rehabilitation. Most program income must stay in vocational rehabilitation. Social Security reimbursements specifically can also be used for independent living and a few other purposes.

Q: Why does the Constitution protect "abusive" speech at public meetings? A: It does not. The First Amendment allows restrictions on truly unprotected speech (true threats, fighting words, incitement, defamation, obscenity). What the Constitution prohibits is content- or viewpoint-based restrictions on protected speech, especially when applied asymmetrically (board members protected, public not).

Q: Did the AG say SILC must allow ANY speech at all?
A: No. The AG explicitly notes that "off-topic" comments (e.g., about Middle East policy at a SILC meeting) can be restricted. Time, place, and manner restrictions are permissible, including length limits and topic relevance. The First Amendment problem is policies that protect SILC's reputation while leaving the public's reputation exposed.

Background and statutory framework

Federal funding context. The Vocational Rehabilitation Act has multiple titles. Title I funds vocational rehabilitation. Title VII Chapter 1 Part B funds independent living for adults with significant disabilities. Title VII Chapter 2 funds independent living specifically for older blind individuals (over 55). The funding is allocated to states with approved plans, and state plans require designation of a "designated state entity" (DSE) to receive and account for the money. New Mexico's DSE is the Division of Vocational Rehabilitation of the Public Education Department.

Commission for the Blind structure. The CFB was created by the Commission for the Blind Act, NMSA 1978 §§ 28-7-15 to -23 (1986). It is mandated to "apply for and receive money from any state or federal agency to be used for purposes relating to blindness." It maintains training centers for "vocational, industrial and other training of eligible blind persons" and "orientation and assistance for the adjustment of blind persons" (§ 28-7-17(D)). The "orientation and assistance" language supports CFB's authority to provide independent living training.

SILC structure. The Statewide Independent Living Council is required by federal law (29 U.S.C. § 796d) for states that receive Part B funds. The SILC plays a coordinating role but cannot directly provide services. Its policies on public comment at meetings are the subject of the First Amendment portion of this opinion.

First Amendment analysis. Public meetings of governmental bodies are "limited public forums" under Griffin v. Bryant (D.N.M. 2014). Restrictions in limited public forums must be "viewpoint-neutral and reasonable." A village ordinance saying "no negative mention will be made of any Village personnel, staff or the Governing Body" was struck down in Griffin because it (1) shielded government employees from negative mention but not private citizens, and (2) allowed praise but not criticism. The SILC policies have the same problems and are unconstitutional as drafted.

Citations and references

Federal law:

• 29 U.S.C. §§ 796e-0 to -796e-3 (Title VII Part B Independent Living)
• 29 U.S.C. § 728 (Social Security reimbursement use)
• 34 C.F.R. § 361.63 (Program income)
• 45 C.F.R. § 1329.10(b) (Permitted Part B uses)

State law:

• NMSA 1978 §§ 28-7-15 to -23 (Commission for the Blind Act)

Cases:

• Counterman v. Colo., 600 U.S. 66 (2023) (categories of unprotected speech)
• Griffin v. Bryant, 30 F. Supp. 3d 1139 (D.N.M. 2014) (limited public forum, viewpoint neutrality)

Source

• Landing page: https://nmdoj.gov/publications/opinions/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2026-08-REVISED-2.pdf

Original opinion text

March 31, 2026

OPINION
Opinion No. 2026-08
OF
RAÚL TORREZ
Attorney General

To: Greg Trapp, Executive Director, N.M. Commission for the Blind

Re: REVISED 1 Attorney General Opinion – Federal Funding and Constitutional Issues Pertaining to the New Mexico Commission for the Blind (CFB) and the Statewide Independent Living Council (SILC)

Questions Presented

1. Is the CFB permitted to utilize funds provided by the federal government, pursuant to Title VII, Part B, of the Vocational Rehabilitation Act, to provide independent living services for visually impaired New Mexicans?

2. Is the receipt of Part B funds a prerequisite for CFB’s use, to provide independent living services to visually impaired individuals, of reimbursement funds paid by the Social Security Administration?

3. Other than the money from the Social Security Administration, can CFB use other federal vocational rehabilitation program funds (“program funds”) to provide independent living services under Title VII, Part B, of the Vocational Rehabilitation Act?

4. Do the Recommended SILC Policies pertaining to public participation and comment and conduct at public meetings violate the First Amendment to the United States Constitution?

Short Answers

1. The New Mexico Commission for the Blind is an appropriate recipient of funds for independent living initiatives under Title VII, Chapter 1, Part B of the federal Vocational

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Our office issued Opinion 2025-14 on December 23, 2025. That opinion was based on our review of the applicable law and the information provided and available to us at that time. New information has since come to light that warrants certain revisions to our response. We hereby withdraw Opinion 2025-14 and issue this revised opinion in its place.

New Mexico Department of Justice
408 Galisteo Street | Santa Fe, NM 87501 | (505) 490-4060 | NMDOJ.GOV

Rehabilitation Act, for the purpose of providing services relating to independent living for individuals under the age of 55.

2. Receipt of Part B funds by the Commission for the Blind is not a prerequisite for the
  Commission’s use, for independent living services, of reimbursements from the Social
  Security Administration for its vocation rehabilitation work.

3. Other than Social Security reimbursements, the Commission cannot use program income
  earned by vocational rehabilitation projects to fund independent living services.

4. Some of the Statewide Independent Living Council’s recommended policies regarding
  public comment and the conduct of meetings violate the First Amendment to the United
  States Constitution, because they are not viewpoint neutral.

                                        Background

The questions asked of this office in this request generally concern the funding of the New Mexico Commission for the Blind (CFB), and which federal funding sources can be used to fund services to help visually impaired New Mexicans who are under the age of 55 to live independently. These services include instruction on how to travel using a white cane, how to read Braille, how to cook without vision, and how to use assistive technology apps for computers and smartphones, as well as the provision of video magnifiers and other adaptive technology.

The CFB was created by the Commission for the Blind Act, NMSA 1978, Sections 28-7-15 to -23 (1986). The CFB is mandated to “apply for and receive money from any state or federal agency to be used for purposes relating to blindness and receive on behalf of the state any gifts, donations or bequests from any source, to be used in carrying out the commission's duties.” Section 28-7-17(A). Among these duties is to “establish, equip and maintain a center with qualified instructors for vocational, industrial and other training of eligible blind persons. The center shall also provide for orientation and assistance for the adjustment of blind persons.” Section 28-7-17(D) (emphasis added to demonstrate that the CFB is authorized to provide independent living training). As will be discussed below, there are significant restrictions on the use of federal funds for support for independent living, as much of the federal funding focuses on vocational training and rehabilitation.

Since the 1980s, the CFB has utilized funding from the federal government provided pursuant to Title VII, Chapter 1, Part B, of the Vocational Rehabilitation Act, 29 U.S.C. §§ 796e-0 to -796e-

3. Essentially, the federal government provides money to each state that has had a plan approved
   for the provision of independent living services for individuals with significant disabilities, including but not limited to a network of independent living centers throughout the state. 29 U.S.C.
   § 796e; 29 U.S.C. § 796d-1; 29 U.S.C. § 796c.

Significantly, this Part B money is the only source of funding under the Vocational Rehabilitation Act that can be used to provide independent living services to visually impaired individuals under the age of 55. Funding from other portions of the Act can be used to provide vocational training, and there is a section of the Act that is dedicated to independent services for the “Older Blind,” or

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those visually impaired individuals over 55 years of age. 29 U.S.C. §§796j to -796l (Title VII, Chapter 2). Significantly, many independent living services are only provided by the CFB, and the independent living centers are not equipped to provide them.

The Part B funding is allocated to the states with approved plans based on their populations. 29 U.S.C. § 796e. In order to receive financial assistance, a state is required to establish a “Statewide Independent Living Council.” 29 U.S.C. § 796d. While the SILC plays an important role in coordinating services, it “shall not provide independent living services directly to individuals with significant disabilities or manage such services.” 29 U.S.C. § 796d(c)(3).

In addition, each state is required to establish a plan describing how the State will provide independent living services “that promote full access to community life for individuals with significant disabilities.” 29 U.S.C. § 796c(o). The plan is also required to “designate a State entity of such State (“designated state entity” or “DSE”) as the agency that, on behalf of the State, shall receive, account for, and disburse funds received by the State under this part based on the plan.” 29 U.S.C. § 796c(c)(1).

In New Mexico, the DSE is the Division of Vocational Rehabilitation of the Public Education Department. Currently, the plan has to be approved by the Administrator of the Administration for Community Living of the Department of Health and Human Services. However, prior to the passage of the Workforce Innovation and Opportunity Act in 2014, approval of the plan came from the Rehabilitation Services Administration of the Department of Education.

Currently, the State receives $348,060 in Part B funds. Of this, 18 percent, or approximately
$60,000, is earmarked for the CFB. The remaining 82 percent is distributed to the centers for independent living. It is important to note that the centers for independent living are eligible to receive further federal funding, under Title VII, Chapter 1, Part C of the Vocational Rehabilitation Act. New Mexico’s plan, adopted in 2024 and covering FY 25, 26, and 27, notes that, while the CFB will receive approximately $60,000 in Title B Funds for FY 25, it will not receive these funds for the following two fiscal years.

The independent living plans have long included payment of Part B funds to CFB, and they have consistently been approved, first by the Department of Education and then by the Department of Health and Human Services. CFB is a state vocational rehabilitation agency that also provides independent living services. However, it is not connected with the centers for independent living. Thus, this office has been asked for an opinion as to whether CFB can receive Part B funding to support its independent living initiatives.

In addition, the CFB makes use of “program income,” which is defined, in the context of vocational rehabilitation, as “gross income received by the State that is directly generated by a supported activity under this part or earned as a result of the Federal award during the period of performance.” 34 C.F.R. § 361.63(a). “Program income” can include payments from consumers or insurers to cover the costs of services for individuals, income generated by a state-operated rehabilitation program, or “payments from the Social Security Administration for assisting Social Security beneficiaries and recipients to achieve employment outcomes.” 34 C.F.R. § 361.63(b).

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For the purposes of this Opinion, the important form of “program income” is that earned from the Social Security Administration. When vocational rehabilitation is provided to an individual who was previously receiving Social Security Disability Insurance (SSDI) or Social Supplemental Income (SSI), and this rehabilitation allows the individual to become gainfully employed, this saves money for the Social Security Trust Fund. Consequently, the Social Security Administration will defray the costs of the rehabilitation.

Significantly, there are restrictions on the use of program income by state agencies. First, with the exception of the aforementioned Social Security reimbursements, “program income, whenever earned, must be used for the provision of vocational rehabilitation and the administration of the vocational rehabilitation services portion of the Unified or Combined State Plan.” 34 C.F.R. § 361.63(c)(1). However, the Social Security reimbursements “may also be used to carry out programs under part B of title I of the [Vocational Rehabilitation] Act (client assistance), title VI of the Act (supportive employment), and Title VII of the Act (independent living).” 34 C.F.R. § 361.63(c)(2).

Thus, CFB has used Social Security reimbursements for its vocational rehabilitation activities to support its independent living program. In addition, the regulations require that the State “use program income to supplement Federal funds that support program activities that are subject to this part.” 34 C.F.R. § 361.63(c)(3). As a consequence of these restrictions, this office has been asked to answer two questions: whether CFB is required to receive Part B money as a condition of using Social Security reimbursements to support independent living initiatives and whether CFB can use any other program income to support independent living program.

Finally, this office has been asked to opine on a somewhat ancillary matter. The SILC has meetings on a regular basis that allow for public comment. However, certain policies have been recommended that would subject this right to public comment to certain restrictions. These policies, while appearing to support the noble goal of increasing the decorum at meetings, contain potentially content-dependent restrictions on speech, raising potential First Amendment concerns. For instance, Section 2 concerns public participation and comment. The following paragraphs contain potentially content-dependent restrictions:

Paragraph E: All comments shared by public participants shall be directed to the NMSILC Chair or presiding NMSILC Officer or Individual; no public participant shall target, attack or bully any NMSILC Council member, staff or its contractors individually.

Paragraph H: Disruptive discussions between public comment participants and/or members of the public in attendance at an NMSILC public hearing/forum/meeting/event is not permitted.

Paragraph I: Participants providing public comment will be courteous and respectful in their language, presentation, and behavior exhibiting high levels of professionalism and integrity. Use of language intended to humiliate, disgrace, demean, defame, shame or mock NMSILC or its members or staff will not be

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tolerated. Nor will behavior intended to bully, intimidate, threaten or gaslight/abuse Council members and its staff.

Paragraph K: At an NMSILC public hearing/forum/meeting/event, the NMSILC Chair or Presiding NMSILC Officer or Individual may “interrupt, warn, or terminate comments from a public participant when his/her/their statement exceeds the duration of time as determined by the NMSILC Chair or Presiding NMSILC Officer or Individual, is derogatively directed and targeted at a Council member or its staff and/or is abusive, obscene, or irrelevant or disregards any part of this policy/procedure.” The paragraph goes on to provide for further steps that may be taken by the Chair, including asking security to remove the individual in question from the premises.

The above policies are not merely aspirational: as noted above, the Chair has the authority to ask security to control an individual who violates them. In addition, repeated violations can lead to temporary or even permanent bans from attendance at public meetings.

Section 3 of the policies to the Code of Conduct for Public Meetings has some similar provisions to those pertaining to Public Participation and Comment, and also has some potentially content- dependent restrictions on speech, particularly paragraph 4, which states:

No abusive language or defamatory statements, personal attacks, bullying or intimidation or any other form of disruptive behavior will be allowed at any point during an NMSILC public meeting by NMSILC council members or staff or members of the public.

While the apparent goal of these provisions is to allow for orderly and safe meetings, there are concerns that they may be broad enough to stifle legitimately protected speech, and this office has been asked to provide an opinion in that regard.

Analysis

1. Part B Funding to CFB

As noted above, Part B of Chapter 1 of Title VII the Vocational Rehabilitation Act funds the state program for independent living for individuals with significant disabilities, regardless of the person’s age or the nature of the disability. The question posed is whether these funds can be paid to the CFB to provide independent living services to visually impaired New Mexicans under the age of 55. Under the statute, the State is authorized to use Part B funds, after deducting up to 30 percent for a SILC resource plan, for the following purposes, in a manner consistent with the approved state plan:

(1) Provide to individuals with significant disabilities the independent living (IL) services required by section 704(e) of the Act, particularly those in unserved areas of the State;

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(2) Demonstrate ways to expand and improve IL services;

(3) Support the operation of Centers for Independent Living (Centers) that are in compliance with the standards and assurances in section 725 (b) and (c) of the Act;

(4) Support activities to increase the capacities of public or nonprofit agencies and organizations and other entities to develop comprehensive approaches or systems for providing IL services;

(5) Conduct studies and analyses, gather information, develop model policies and procedures, and present information, approaches, strategies, findings, conclusions, and recommendations to Federal, State, and local policy makers in order to enhance IL services for individuals with significant disabilities;

(6) Train individuals with disabilities and individuals providing services to individuals with disabilities, and other persons regarding the IL philosophy; and

(7) Provide outreach to populations that are unserved or underserved by programs under title VII of the Act, including minority groups and urban and rural populations.

45 C.F.R. § 1329.10(b).

Only one of these seven purposes specifically concerns the Centers for Independent Living. The remaining purposes clearly encompass the services provided by CFB. For instance, the Part B funds can be used to provide independent living services to individuals with significant disabilities, as described in Section 704, to train individuals with disabilities and caregivers, and to provide outreach to underserved populations. The Department of Vocational Rehabilitation, as the DSE, is generally not permitted to directly provide independent living services to individuals with significant disabilities. 45 C.F.R. § 1329.4. However, there is no reason why other state agencies are not permitted to provide such services. The regulations pertaining to Part B define the term “service provider” broadly, as not only the CILs, but “any other entity or individual that provides IL services under a grant or contract from the DSE pursuant to Section 704(f) of the Act.” There is also no reason why this definition would not include a state entity. The list of permissible uses for Part B funds specifically includes increasing the “capacities of public or nonprofit agencies and organizations and other entities.” 45 C.F.R. § 1329.10(b)(4). This indicates that the use of Part B funds by state agencies was explicitly contemplated by the federal government.

In conclusion, Plan B funds are to be used to provide independent living services to individuals with significant disabilities. They may be utilized by the centers for independent living, they also may be used by other entities, including CFB. CFB may use these funds to provide independent living services to visually impaired individuals under the age of 55.

2. Part B Funding to CFB as Prerequisite to Receiving Funds from the Social Security Administration

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The next question posed to this office is whether receipt of Part B Funding is a prerequisite for using money paid by the Social Security Administration for reimbursement for vocational rehabilitation. As noted above, the regulations governing “program income” specifically allow this reimbursement, a subset of “program income,” to be used for certain non-vocational rehabilitation purposes, including services for independent living under Title VII of the Vocational Rehabilitation Act. Notably, the regulation does not specify that the programs must be funded under Part B, but refer to Title VII as a whole. The argument that receipt of Part B funding is a prerequisite for receipt of program income from the Social Security Administration appears to be based on a portion of the regulation that states that “the State must use program income to supplement Federal funds that support program activities that are subject to this part.” 34 C.F.R.
§ 361.63(c)(3)(i).

However, the paragraph does not require that any particular agency needs to use program income to supplement federal funds, only that the State as a whole needs to do so. Whether or not CFB receives Part B funds, the State of New Mexico does receives such funding, as well as funds issued through other portions of Title VII. Thus, even if CFB itself does not receive Part B funds, the State’s Independent Living Program, as a whole, is federally subsidized. Thus, CFB can utilize Social Security reimbursements for independent living services without receiving Part B funding.

The other potential source of restrictions on receipt of Social Security reimbursements is a section of the Rehabilitation Act itself, which states that reimbursement from the Social Security Administration for expenditures of federal vocational rehabilitation expenditures “may not be expended by a State for any purpose other than carry out programs for which the State receives financial assistance under this title, under title VI, or under Title VII.” 29 U.S.C. § 728 (emphasis added). However, even if CFB does not receive funding under chapter 1, Part B of Title VII, it still receives funding for the Title VII Independent Living Program as a whole, and the State itself receives Part B and other Title VII funding. Thus, even if CFB does not itself receive Part B funds, it can still expend Social Security reimbursements for its independent living work, including services for visually impaired individuals under the age of 55.

However, the requirement that the State use Social Security program income to supplement State programs funded under Title VII creates certain procedural requirements. In order to use social security reimbursements to subsidize Part B activities, such as independent living services for visually impaired individuals under the age of 55, CFB must remit these reimbursements to the New Mexico Vocational Rehabilitation Division. Because the social security reimbursements must be used to supplement Part B funds if they are to pay for independent living services, they must be funneled through the only state agency that is permitted to administer Part B funds. That agency is the Vocational Rehabilitation Division, as the DSE. However, because the use of these funds is considered on the level of the State as a whole, there is no reason why the Vocational Rehabilitation Division cannot repay the funds to CFB for independent living services, if it determines that this repayment is appropriate, even if the Division had not previously disbursed any of the original Part B funds to CFB. The requirement that CFB remit the funds to the Division is limited to the use of the funds to subsidize independent living activities. CFB, of course, is permitted to keep the Social Security reimbursements to subsidize the same vocational rehabilitation services for which it received these reimbursements.

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3. Use of Program Income, Other than Social Security Reimbursement, for Title VII Services

The answer to the next question is fairly straightforward: while Social Security reimbursements for vocational rehabilitation services can be transferred to the Title VII independent living program, can other program income generated by vocational rehabilitation services be transferred to the Title VII program. According to the relevant federal regulation, “[e]xcept as provided in paragraph (c)(2) of this section, program income, whenever earned, must be used for the provision of vocational rehabilitation services and the administration of the vocational rehabilitation services portion of the Unified or Combined State Plan.” 34 C.F.R. § 361.63(c)(1). Paragraph (c)(2) simply refers to the Social Security reimbursements described above. Therefore, the answer is clear: the only vocational rehabilitation program income that can be used for Title VII activities is Social Security reimbursement, and all other program income must be used for vocational rehabilitation activities.

4. Free Speech Issues Raised by the SILC Policies

Finally, this office has been asked to opine regarding the First Amendment issues raised by the recommended SILC policies regarding public comment at its meetings. Such an analysis is, by its nature, fairly complex. There are several types of speech that are unprotected, and the State has the right to enact certain limitations of protected speech for various reasons. However, an ordinance or policy, even when enacted with the most benign of intentions, can be an invalid infringement on the right to free speech.

“From 1791 to the present, the First Amendment has permitted restrictions upon the content of speech in a few limited areas.” Counterman v. Colo., 600 U.S. 66, 73 (2023) (internal quotation marks and citation omitted). “One is incitement—statements directed [at] producing imminent lawless action, and likely to do so.” Id. (internal quotation marks and citation omitted). “Another is defamation—false statements of fact harming another’s reputation.” Id. A “third is obscenity— valueless material “appeal[ing] to the prurient interest” and describing sexual conduct in a patently offensive way.” Id. (internal quotation marks and citation omitted). A fourth is “true threats” of violence, as distinguished from obvious jests or hyperbole. Id. at 74.

Restrictions on protected speech are evaluated using different tests depending on the manner of the restriction. For instance, a “time, place, or manner” restriction may be acceptable, as long as it is “reasonable, content-neutral, and narrowly tailored to effectuate a significant government interest.” Griffin v. Bryant, 30 F. Supp. 3d 1139, 1181 (D.N.M. 2014). In addition, the restriction “must leave open ample alternative channels of communication.” Id. In Griffin, the U.S. District Court for the District of New Mexico considered a village ordinance governing public comment at village Governing Body meetings stating that “no negative mention will be made of any Village personnel, staff or the Governing Body.” Id. The court noted that this was not a proper “time, place, or manner” restriction, because it was not content-neutral. Id. at 1187. Thus, it would be analyzed “under the usual framework for speech restrictions in a limited public forum, which is that it must be viewpoint-neutral and reasonable.” Id. at 1188. Meetings of the Governing Body of a village are considered to be a limited public forum, as “[t]he Governing Body has transformed

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what would otherwise be a non-forum into some level of speech forum through its Resolutions, which provide, among other things, for a public input period.” Id. at 1179. However, the ordinance in question failed that test, as it was not viewpoint neutral, for two reasons. “First, it shield[ed] government employees from negative mention, but not private citizens—including the other citizens present at the Governing Body meeting.” Id. at 1188. Second, and more serious, the ordinance “allow[ed] praise but not criticism of the Governing Body and its employees.” Id. Thus, the ordinance was not upheld, as “[n]either the Supreme Court nor, as far as the Court can tell, any other federal court has ever upheld a statute after concluding that it was viewpoint-based.” Id. at 1189. Accordingly, the ordinance was facially invalid. Id. at 1197.

Based on the above, the policies in question need to be altered in order to be constitutional. Like the village at issue in Griffin, meetings of the SILC are a limited public forum, they are meetings for the board to discuss business, but they also allow for limited public input. While the restrictions on speech during these meetings are not content-neutral, that alone is not fatal to their constitutionality. For instance, it would not be appropriate to utilize a SILC public comment period to discuss the situation in the Middle East. Further, much of what was banned by the policies would encompass incitement and threats, which, as discussed in Counterman, are not constitutionally protected.

However, the restrictions are clearly not viewpoint neutral, as, in several locations, they protect SILC members and staff from derogatory, demeaning and bullying language, but say nothing about protecting others from such language or preventing praise of the SILC members. The policies could be amended to pass constitutional muster, if the restrictions were amended to provide symmetry between attacks on SILC members and attacks on the public, and if the restrictions could be clarified to be limited permissible examples of a “no negative mention” rule. See, e.g., Griffin, 30 F. Supp. 3d at 1195 (collecting examples of permitted restrictions, including “fighting words” and irrelevant personal attacks). However, they are not constitutional as written.

Conclusion

The New Mexico Commission for the Blind may receive federal funding under Part B of Chapter 1 or the Title VII of the Vocational Rehabilitation Act to provide independent living services to visually impaired individuals under the age of 55. However, receipt of such Part B funding is not a prerequisite for the Commission to receive, and utilize for independent living services, reimbursement from the Social Security Administration for vocational rehabilitation projects. Such rehabilitation is the only “program income” derived from vocational rehabilitation programming that can be used to provide independent living services. Finally, the recommended policies of the Statewide Independent Living Council, to the extent that they concern public comment, do not pass constitutional muster, as they are viewpoint-dependent restrictions on speech.

Please note that this opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.

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RAÚL TORREZ
ATTORNEY GENERAL

/s/ Lawrence M. Marcus
Lawrence M. Marcus
Assistant Solicitor General

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