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Court strikes down ‘no criticism’ rule

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Copyright © 2014 Albuquerque Journal

For the second time this year, a federal judge has come down hard on a governmental body that went too far in trying to limit comment at a public meeting.

U.S. District Judge James O. Browning issued an injunction Monday in an 89-page opinion finding that the village of Ruidoso’s rule or policy barring speakers at council meetings from saying anything negative about village employees or its governing body is “an unconstitutional burden on free speech.”

As enacted by the village, a speaker could praise personnel, staff or the village council, or could make a neutral comment, but could not voice criticism.

Browning granted summary judgment to William Griffin on that claim while dismissing other claims, including allegations of a civil conspiracy. Griffin, a lawyer, sued after the council refused his request to speak at a meeting.

The Ruidoso rule is not a prior restraint on speech, Browning said in the opinion, but it nevertheless violates the First Amendment because governing body meetings are limited public forums, so any speech restriction must be reasonable. Limits can be placed on time and topic, but not on the speaker’s opinion.

Greg Williams, president-elect of the New Mexico Foundation for Open Government, said the importance of Browning’s opinion is that “a policy that says you can’t be critical is improper.”

“You can have a rule to keep it (the meeting) from being disruptive. You can block topics, but not viewpoints, and negative is a viewpoint,” Williams said. “From here on out, they can’t enforce it.”

Williams said the public has an interest in having meetings run in an orderly fashion and wants governing bodies to be able to do the public’s business.

Browning’s opinion states: “The core pursuit of governing body meetings is to make decisions and conduct business on behalf of the municipality. … (The governing body takes) limited public comment so that it can be informed of its constituents’ opinions, and, with this information, be better situated to make decisions that are more democratic and sometimes, more competent.”

Nothing in New Mexico law requires a body to allow the public to speak, although the law requires that meetings be open, the opinion notes.

Browning wrote that the offending section of the rule, barring “negative mention” of staff, personnel or the governing body, could be tailored to meet constitutional requirements.

In late March, Chief U.S. District Judge M. Christina Armijo ruled against the Albuquerque Public Schools board’s decision to expel Charles “Ched” MacQuigg, a frequent, outspoken speaker who was extolling the benefits of a particular program.

Board members said they took the action because MacQuigg would shout out during board meetings, hover over administrators and once donned an elephant mask that made employees and members of the public feel uncomfortable and unsafe.

Armijo said the real reason for excluding the speaker was “the board’s frustration with plaintiff’s ad nauseum belaboring … about Character Counts.” She said the board’s justifications “are pretexts masking viewpoint discrimination.”

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