FIRE finds flaws in Richmond County’s public speaking policy; speakers denied entry

ROCKINGHAM — A lawsuit is pending.

That’s how Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, describes the Richmond County Board of Commissioners’ public speaking policy.

“I noticed one problem after another while reading the policy,” Terr said in an email to RO after the review. “It would be a good problem-spotting question on the bar exam.”

FIRE (formerly the Foundation for Individual Rights in Education) is a leading free speech advocate based in Philadelphia, Pennsylvania. Its original mission was to defend students and faculty from overzealous university administrators, but in 2022 the organization expanded its scope beyond campus to include the rest of society.

The current public speaking policy was adopted by commissioners in February 2022 — at the request of Commissioner Andy Grooms — to amend several issues in the previous policy that free speech experts said raised “serious concerns.”

Grooms first mentioned the policy change in a February 2022 email, but the matter did not surface until December of that year.

Click here to read the first discussion of the changes.

However, the draft policy — revised by board secretary Dena Cook — was criticized by both the NC Open Government Coalition and the Rutherford Institute before it was approved.

Click here to read about the NC Open Government Coalition’s concerns with this policy.

Click here to learn more about the adoption of this policy and the analysis conducted by the Rutherford Institute.

Click here to read the RO editorial regarding this policy.

“The most disturbing provisions are those that are intended to protect county officials from negative comments,” Terr said.

One provision of the policy prohibits “…matters or comments that are harmful, discriminatory, or embarrassing to any citizen(s), official(s), or employee(s) of Richmond County…”

The policy also prohibits comments regarding: the candidacy of anyone seeking elected office; applications for program or activity funding; matters “in pending or anticipated legal proceedings” or matters involving closed sessions.

“The ban on speech that is ‘embarrassing’ to a county official (or anyone else) is laughably unconstitutional,” Terr said. “There is no First Amendment exception for speech that makes public officials feel bad. The ban on ‘personal attacks’ needs to go for the same reason.”

Terr also addressed other issues related to this provision.

“Board members also do not have the authority to restrict speech simply because they ‘believe’ it is ‘inappropriate,’ which would give them the freedom to silence any comments that they find offensive,” Terr continued. “The ban on commenting on political candidates strikes at the heart of First Amendment speech, which is who people should elect to office.

“And it is difficult to see any constitutional justification for prohibiting discussion of ‘closed session’ matters or matters subject to litigation,” Terr said. “Allowing the public to discuss these matters, as it is entitled to, will not compel any board member to speak on them.

“The problems don’t end there,” Terr added. “Several courts have invalidated bans on comments directed at third parties. Such rules are not necessary to maintain order. The board can instead prohibit threats and disruptive behavior.”

Hamlet resident Pam Simmons Young was temporarily barred from speaking before the commission after county officials deemed her social media comments threatening.

Click here to read about Young’s ban.

Our policy is that speakers must register to speak with Cook by 5:00 PM on the Friday prior to the next meeting.

Several of those who objected to Grooms’ social media comments last month tried to have their names added to the July meeting agenda. Their request was rejected.

Click here to read about the public speaking portion of the June meeting.

In emails seen by RO, Cook rejected the applications submitted by Taryn Masterson, Jerry Tilley and Jara Flowers.

Last month, Masterson asked the remaining board members for a “deafening silence” following Grooms’ comments, telling them that “their silence is complicity.”

Masterson repeated this point in subsequent emails to commissioners.

After receiving no response, Masterson wrote to Cook on June 27 (the day before the deadline): “You can immediately put me back on the agenda for July 2, same topic, since it is clear that it will not be discussed before then.”

Cook’s initial response cited the policy’s residency requirement, which states the forum is open to any “resident and/or property owner” of Richmond County.

“It has come to our attention that you are not a resident of Richmond County and therefore are not eligible to participate in the public forum,” Cook said.

Masterson responded that they had exchanged similar emails a month earlier and added that she was living temporarily in the county, providing her parents’ address.

Although Terr did not address the residency requirement in his review of the policy, Frayda Bluestein of the UNC School of Government wrote in 2016:

“There is no express authority for such a restriction, and I have doubts about its legality, although in one case it was held that such a restriction did not violate the Constitution… In the absence of any specific statutory authority to limit the categories of persons who may speak, I believe that a provision limiting comments to residents or taxpayers would be based on weak legal foundations.”

In her response the next morning, Cook contradicted Masterson on both the subject and where she lived: “The matter you plan to discuss is not relevant to our Board of Commissioners. The Board of Commissioners has no jurisdiction to discuss this subject. Furthermore, state records indicate that you reside in the Raleigh/Durham area, NOT Richmond County.”

Cook also rejected the requests from Tilley and Flowers because their topic was “not material” to the board.

Tilley wanted to address the county’s “continued refusal to address the homophobic comments made by Andy Grooms.”

When Cook informed him that he “would not be allowed to speak in an open forum,” Tilley responded, “While your council may not have jurisdiction to discuss anything, I have the right to speak on any topic that is of concern to the entire county.”

In a follow-up email, after his request was again denied for the same reason, Tilley responded, “Feel free to change my subject line to ‘continued call for inclusivity and related events’ if that would be more ‘necessary’ for county commission members.”

Tilley was once again denied.

“What is it about my issue about the need for awareness in the county that is not relevant to the county board?” Tilley asked Cook. “I’m really curious. This is a public comment section and I’m commenting on a public issue.

“Please understand that this will not stop me from speaking out on this issue, and if you continue to dismiss me based solely on the fact that the board does not want to pursue a lawsuit against one of its own, I will be forced to contact the ACLU because this is a direct violation of my First Amendment rights,” Tilley added.

Flowers wrote to Cook on June 28, asking for him to address the issue of “inclusion and diversity in county representation.”

In a nearly identical response to Tilley and Masterson, Cook said, “The issue you plan to address is not material to our Board of Commissioners. Therefore, you will not be able to speak during the open forum at our July monthly meeting.”

“Thank you for the clarification,” Flowers replied simply. “That my First Amendment rights are being violated. I will act accordingly.”

Terr said that while the rules themselves are constitutional, enforcing them could violate the First Amendment, citing as an example the requirement that comments must relate to county matters.

“At least one court has struck down the ban on ‘irrelevant’ comments as too vague, though others have upheld the materiality requirement,” Terr said. “But even assuming the rule is valid, the board cannot use it as an excuse to censor views it disagrees with or to sweep uncomfortable issues under the rug.”

Although they were not given the opportunity to speak during the meeting, the protest is scheduled to begin at 3:00 p.m.

Grooms said at a meeting a few months ago that the board should reconsider the policy, but there has been no public discussion of it since then.

“The public comment period is not a cheerleading session,” Terr said. “It is an opportunity for citizens to speak freely to their representatives and may include sharp criticism of their leadership. The board should change this policy. This is a pending lawsuit.”