From a 2005 ACLU letter
RI Open Meetings Act is "silent on the issue of the public comment portion of an open meeting. However, RI Open Meetings Act is clear in limiting its reach to circumstances where a public body engages in a colloquy with a member of the audience.
In 2001, the ACLU:
- Obtained a restraining order in R.I. Superior Court against a Providence School Board policy barring members of the general public from mentioning the name of any person during the public comment portion of school board meetings.
- Challenged Tiverton School Committee policy barring the public from orally initiating "charges" or "complaints" against school employees during the public comment period; the School Committee rescinded the policy as a result.
The favorable resolution of those cases was no surprise, for courts have routinely struck
down these types of restrictions as a violation of the public's First Amendment rights. See, e.g.,
Bach v. School Bd. of City of Virginia Beach, 139 F.Supp.2d 738 (E.D. Va. 2001)(striking down school board by-law prohibiting “personal attacks” during public comment period of school board meetings);
Leventhal v. Vista Unified School District, 973 F.Supp. 951 (S.D. Cal. 1997)(striking down school board by-law prohibiting criticism of district employees during public comment segment of public meetings);
Baca v. Moreno Valley Unified School District, 936 F.Supp. 719 (C.D. Cal. 1996)(striking down school board policy barring, at open sessions of school board meetings, comments which included “charges” or “complaints” against district
employees, regardless of whether employee was identified).
RI Open Meetings Law
SECTION 42-46-6
(d) Nothing within this chapter shall prohibit any public body, or the members thereof, from responding to comments initiated by a member of the public during a properly noticed open forum even if the subject matter of a citizen's comments or discussions were not previously posted, provided such matters shall be for informational purposes only and may not be voted on except where necessary to address an unexpected occurrence that requires immediate action to protect the public or to refer the matter to an appropriate committee or to another body or official.
Nothing contained in this chapter requires any public body to hold an open forum session, to entertain or respond to any topic nor does it prohibit any public body from limiting comment on any topic at such an open forum session.
No public body, or the members thereof, may use this section to circumvent the spirit or requirements of this chapter.
Public Official vs Private Citizen
U. S. Supreme Court. New York Times Co. v. Sullivan, The court ruled that constitutional guarantees prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. Actual malice was defined as (1) knowledge of falsity, or (2) reckless disregard as to the truth or falsity of the statement. The court thereby ruled that a conditional privilege and the allowance of the defense of truth required by the First and Fourteenth Amendments applied.
The effect of this landmark case was the recognition of a qualified privilege under the U. S. Constitution to criticize public officials and candidates without liability for defamation. However, the court failed to outline the definition of "public official." What individuals were to be included in the term?
The Supreme Court later had the opportunity to clarify that point in its ruling in Rosenblatt v. Baer. Here the court stated, "The term public official applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." It also indicated that the public official must occupy a position that would invite public scrutiny and discussion of the person holding it.
The First Amendment was adopted in order to preserve the open discussion by the public of all political issues, including public officials. To allow a public official to recover every time someone made a statement that was not completely true would result in self-censorship of the press and the public discussion of these officials. 