District attorney explains limits on regulating public comment and defamation at board meetings

Jonathan Salt of F3 Law told trustees there are limited circumstances in which a legislative body can interrupt a speaker during public comment beyond enforcing time limits: special meetings limited to agenda items, public comment outside the board's subject-matter jurisdiction, and true threats or willful disruption. He stressed the legal standard is high before a speaker can be removed for disruption.

Salt gave an example from case law in which a person performing a Nazi salute at a meeting prompted a lawsuit that the speaker won, illustrating courts’ tendency to protect even offensive speech in legislative settings. "The saluter won," Salt said when summarizing the court outcome.

He explained that statements made as part of a legislative meeting are often privileged under civil-code doctrines and may not constitute actionable defamation even if they are false, because the speech is meant to prompt the board to investigate allegations. "Because public comment is on the agenda, public comment is part of this legislative body's meeting... it is actually privileged under the civil code," Salt said.

Salt cautioned boards to base any disruption response on the high legal standard for a "true threat of force," which requires words or actions showing a clear intent to cause physical harm such that a reasonable person would treat it as such. He recommended tolerance of offensive speech that does not meet that threshold and advised that removing disruptive speakers can itself escalate conflicts.

What trustees learned: the legal bar for silencing public comment is high; boards should carefully document any action to remove a speaker and consult counsel when speech appears to cross into threats or imminent disruption.