The town board of Riverhead, NY recently passed a new rule governing its town meetings. You cannot boo nor can you snicker, sneer, or engage in any behavior deemed disruptive. You can however clap, and possibly cheer. The board members deleted the term ‘applause’ before passing the new rule by a 4 to 1 vote.[1] Granted there is no penalty attached to the rule, the rule would still chill protected speech. In essence, the rule here matches the rule in Tinker v. Des Moines. Some types of speech, such as positive reactions to the board’s statements or decisions, are allowed, other speech “disrupt[s] the formality of a town board meeting.”[2]
Certainly a town board or city council has an interest in maintaining decorum at their meetings. Certainly it becomes more difficult if the meetings include significant outbursts and tirades in the middle of formal proceedings, however, if we examine the proceedings of parliamentary systems we see that booing, jeers, and cheers are the order of the day.[3] Yet, meetings still progress and are productive. According to the Wall Street Journal’s Law Blog, this ban is not an aberration.[4] It seems that local governments are stifling opposition and potentially curbing reasonable and non-disruptive speech just as the principal in Tinker did by curtailing the children’s armbands. And while school’s can to curtail speech that may cause a ‘material disruption’, a town board is not acting in loco parentis for the town residents. They are representatives of the local population. Given this fact, shouldn’t those residents motivated enough to attend a local board meeting be able to express their disdain, or approval, without courting reprimand?
If we are looking for an example of current law or rule that is overbroad or vague, this one seems to be a good candidate. And if its not overbroad, the exclusion of applause (positive reinforcement) is likely also a content-based restriction. Only negative disruptions are prohibited. Applause can certainly be disruptive and extend the length of any speech or debate, witness the State of Union speech each and every year. There are so many times a president must stop to allow his partisan brethren to applaud that news organizations count the applause and measure the success of the speech based upon the number and timing. (If your interested, the Washington Post reports that the number of lines that garnered applause in 2013 was 101.)[5] And it is unlikely that the need for decorum only in the negative case would pass strict scrutiny.
[1] http://www.newsday.com/long-island/towns/riverhead-board-bans-booing-at-meetings-1.4763873?print=true. Last accessed March 11, 2013.
[2] ibid
[3] See http://www.youtube.com/watch?v=5xUy2inkGHQ for David Cameron criticizing Gordon Brown in 2007 or more recently, Australian Prime Minister Julia Gillard’s tirade against sexism in the Australian Parliament navigate to http://www.youtube.com/watch?v=t0LFKwfvvNY. Last accessed March 11, 2013.
[4] http://blogs.wsj.com/law/2013/03/08/town-board-bans-booing/. Last accessed March 11, 2013.
[5] http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/13/president-obamas-2013-state-of-the-union-by-the-numbers/. Last accessed March 11, 2013.
Without Prejudice 