How NC towns can combat hate speech without restricting free speech in public meetings

What should have been a regular Matthews Board of Commissioners meeting briefly devolved into a conversation about free speech on Monday.

During the meeting’s public comment section, several individuals spoke over Zoom, sharing hateful comments filled with homophobia, transphobia, and antisemitism.

The hate speech from the multiple Zoom attendees included accusations of pedophilia and child molestation, anti-Jewish conspiracies, and Holocaust denialism.

It led to some attendees leaving the meeting early and some commissioners arguing over whether or not it was acceptable to turn down the volume on one of the speakers before he finished his comments.

At the meeting, Commissioner Mark Tofano asked if the sound was purposefully turned down on a commentator who was making antisemitic statements. Commissioner Renee Garner said she asked that it be turned down.

That interaction led to a brief argument about freedom of speech.

“I refuse to sit down on this…although you may not agree with him and we might find it repulsive, you have no right to turn the volume down on this man,” Tofano said.

At the end of the meeting, Tofano reiterated that, while he disagreed with what the commentator was saying and found it “hard to listen to,” it was discriminatory to turn down the volume on a speaker.

“That type of abridgment of freedom of speech cannot be tolerated, regardless of the content,” he said.

He said he hopes they do not “discriminate” against speakers in the future as the board did Monday night.

But Commissioner Ken McCool, who said the incident was potentially an example of “Zoombombing,” pushed back, saying that the board has the right to lower the volume of the speaker, so long as people could hear it, and, he said, they confirmed with multiple audience members that the speaker could be heard after the volume was lowered.

“I think you are projecting something that did not happen,” McCool said. “We were not trying to take away someone’s freedom of speech.”

Kristi Graunke, the legal director of the American Civil Liberties Union of North Carolina, spoke with The Charlotte Observer on Thursday about hate speech at public meetings and what towns may be able to do to mitigate the issue in the future.

Is hate speech protected by the First Amendment?

Yes, said Graunke. Expressing viewpoints, “however reprehensible” they may be, are generally protected by the First Amendment.

What does the First Amendment say?

In addition to prohibiting the government from making laws that establish a religion, restricting the press, and giving people the right to peaceably assemble to petition the government over grievances, the First Amendment also prevents the government from restricting people’s freedom of speech.

Does hate speech, if ever, cross a line and become unprotected by the First Amendment?

If the hate speech includes an incident of imminent violence, then it would not be protected by the First Amendment, Graunke told the Observer.

Hate speech would cross the line if it’s “what we would call a true threat — a very specific threat to commit an unlawful act against someone that is sort of wrapped up in that hate speech. But it generally would require more than simply expressing a hateful point of view.”

What do North Carolina laws say about public comments in meetings?

The North Carolina General Assembly said that town councils “shall provide at least one period for public comment per month at regular meetings of the council.”

It said town councils can adopt “reasonable rules of governing,” for the public comment period.

This includes:

• Setting a time limit for each speaker

• Allowing a spokesperson to be designated to speak on behalf of a person or groups who support or oppose the same positions

• Allowing delegates to be selected from a group of people who support or oppose the same positions when the hall the meeting is being held in exceeds capacity

• Maintaining order and decorum during a meeting

A commissioner in Matthews got up and left during one of the comments. Is she expected to listen to all speakers’ comments?

Graunke is not aware of any case that addresses this issue specifically, but in many cases, she said, the First Amendment protects the rights of people who choose not to listen to messages - including elected public officials.

“Elected public officials have First Amendment rights, certainly, and those rights are particularly robust when they’re trying to send a message about their values and beliefs,” Graunke said. “Walking out may be one way to indicate those beliefs.”

While the court may ask whether the elected officials’ demonstration of refusing to listen interfered with their ability to perform basic functions of their office, she said, and officials may not have free rein to silence speakers they disagree with, it would be a difficult argument to make that they are obligated to listen to hate speech to fulfill the basic requirements of their positions or oath of office.

Especially when the speech has no connection to the commission’s business, Graunke said.

“Free speech doesn’t mean that you’re entitled to avoid all consequences of your speech,” she said. “Certainly, if you’re someone engaged in hate speech, you voluntarily assume the risk that people will find your message so odious that they will refuse to listen to it.”

Are people really allowed to say whatever they want at public meetings?

It depends. Graunke said there are ways for the government to limit or moderate what’s discussed during the public comment sections of meetings, but it’s determined by what the meeting is for and the rules put in place beforehand.

If the government has chosen to open up a space for public participation at a meeting, known as a limited public forum, then speakers do not necessarily have unlimited rights to speak on any topic, she said.

If the meeting, for example, pertains to zoning, then towns can limit public comments to those only focused on the subject matter at hand.

“It really depends on what the government says the purpose of the meeting is for,” Graunke said. “They can make reasonable restrictions on the time, place and manner of speech as long as they’re not discriminating based on viewpoint or the speaker themselves, and they can cut off speech which imminently threatens to disrupt the meeting.”

There are limits on how much the towns can limit speech, but they can, in fact, limit speech, she said.

But what about in the town of Matthews?

According to the town of Matthews’ Board of Commissioners Organizational Resolution, the public comment portion of the meeting gives citizens the opportunity to speak on any subject for up to five minutes.

That changes things because the town cannot necessarily shut down speakers because they don’t like what they are saying, Graunke said.

“That said, if they say it needs to be a topic pertaining to issues that we discussed at the meeting, or it needs to be a topic of legitimate concern to public officials, those become a little fuzzier,” she said. “They do have some authority to limit the topics of conversation, so long as they are not discriminating based on who the speaker is, or the viewpoint of that speaker.”

The town could potentially make rule changes ahead of future meetings, such as limiting public comment to only discussing what is on the agenda. But it would need to make sure that those rule changes were occurring during the middle of a meeting, and do not discriminate against a specific person or viewpoint.

“There’s also this question of imminent disruption, that I think that’s a fairly high standard to meet that you need to show that,” Graunke said. “It’s a reasonable perception of disruption, that the officials have, not just speculation, that the meeting is going to become unmanageable.”

She said there may be alternatives to completely shutting down hate speech in some way. She pointed to people who left the Matthews meeting early during the hate speech comments, which she said is their right to do.

But there is a line that speech could cross where it becomes disruptive to the meeting and, conceivably, could be regulated.

Would that put a stop to hate speech at public meetings?

Not necessarily, Graunke said. For example, if a town is speaking about school curriculum and invites public comments, as long as the comments tie back to the subject matter at hand, towns wouldn’t really be able to limit any hate comments being shared.

Is there anything else that can be done to mitigate hate speech?

Towns like Matthews are not exploring uncharted territory, Graunke said. There have been a number of cases of similar issues, she said.

Towns can do things like limiting people to commenting on topics pertaining to what is on the agenda, or enforcing time limits and cutting people off, but the “key thing” is to make sure that any changes towns make to the public comment portions of meetings are not discriminatory towards a speaker or their viewpoint.

“People need to know that the rules are going to be fair and that they’re going to apply evenly, regardless of viewpoint,” Graunke said.

Should towns limit their public comments to people who live in that town/county?

Graunke said she has concerns about how a policy that limits public comments to those who live in the town or county would be enforced, and potentially issues with discrimination.

“We obviously live in a very mobile society where people can change residence,” Graunke said. “You may live somewhere and work somewhere else, and just because you don’t live in that community doesn’t mean that you don’t have some stake in what’s going on in the community.”

It could create a barrier for someone who wants to participate in the meeting, but can’t provide proof of residency. Or wants to participate spontaneously, but didn’t bring proof with them.

“I think, given the interdependence of various communities, that nobody sort of lives siloed in one city, and there are ripple effects on cities’ decisions about certain issues,” Graunke said. “It would be concerning to me that people who simply can’t establish residency in the community for whatever reason, or didn’t bring the proof to that particular meeting, if they were barred from commenting on matters within the city.”

Why are people allowed to make comments via Zoom instead of being required to come in person to make comments?

Remote access has been particularly important for people who have health issues, or people with disabilities, Graunke said. Shutting down virtual access to meetings would limit access for some people.

Instead, towns should look at ways to limit Zoombombings and disruptions through other means other than limiting or removing remote access, she said.

What is Zoombombing?

In 2020, during the pandemic when many aspects of life — including work, school and church — went virtual, the FBI’s Boston Office warned of people who would enter virtual public meetings to disrupt them with things like pornographic images and videos, vulgar language, and crude behavior.

How often do people disrupt public meetings?

The Anti-Defamation League’s Center on Extremism has documented over 160 hateful public forum disruptions since publishing its report on Aug. 21, 2023.

“The comments made at Monday’s Town of Matthews Board of Commissioners meeting were vile; perpetuating deeply harmful antisemitic and anti-LGBTQ myths and stereotypes,” said the ADL Washington, D.C. Regional Director, Meredith R. Weisel. “This is unacceptable – especially at a time of rising antisemitism and hate.”

Have others weighed in?

In addition to McCool, and a couple of other officials and groups voicing the disapproval of the comments made at the meeting, the LGBTQ+ Democrats of North Carolina and the North Carolina Democratic Party Jewish Caucus put out a joint statement on Wednesday.

“In light of recent events, we call upon the Town of Matthews Board of Commissioners to explore ways of managing public discourse that uphold the principles of free speech while safeguarding our community from hateful and disruptive antics,” the statement read in part. “Commenters have a right to speak their minds, but they do not have a right to derail the meeting, preventing others from speaking.”

What now for the town of Matthews?

There is a special meeting scheduled for Tuesday, March 5 at 6 p.m. to discuss methods for citizens to provide public comments during board meetings.

The ADL said it also planned to reach out to town officials to offer guidance on how to mitigate hate speech at future meetings.

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