June 2, 1998
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
Dear Council President Brown:
I have received your communication of May 6 in which you sought an opinion
concerning "the First Amendment Free Speech."
Although you did not identify the municipality that you serve, you wrote that you
recently sought and gained approval of a change in the "procedure for public speaking at
[y]our business meeting", but that since the change, the Council "has been accused of
violating the Constitution of the United States." You wrote that in the past, members of the
public were given up to five minutes to speak "on City business"; "the change made now
allows five minutes for agenda items only." As I understand your remarks, any matter of City business may be raised at the Council's work sessions, which are conducted differently from its business meetings.
In this regard, while individuals may have the right to express themselves and to
speak, I do not believe that they necessarily have the right to do so at meetings of public
bodies. It is noted that there is no constitutional right to attend meetings of public bodies.
Those rights are conferred by statute, i.e., by legislative action, in laws enacted in each of the fifty states. In the absence of a statutory grant of authority to attend such meetings, I do not believe that the public would have the right to attend.
In the case of the New York Open Meetings Law, in a statement of general principle
and intent, that statute confers upon the public the right to attend meetings of public bodies,
to listen to their deliberations and observe the performance of public officials. However, as
you are aware, that right is limited, for public bodies in appropriate circumstances may enter
into closed or executive sessions. As such, it is reiterated that, in my opinion, there is no
constitutional right to attend meetings.
Within the language of the Open Meetings Law, there is nothing that pertains to the
right of those in attendance to speak or otherwise participate. Certainly a member of the
public may speak or express opinions about meetings or about the conduct of public business before or after meetings to other persons. However, since neither the Open Meetings Law nor any other provision of which I am aware provides the public with the right to speak during meetings, I do not believe that a public body is required to permit the public to do so during meetings. Certainly a public body may in my view permit the public to speak, and if it does so, it has been suggested that rules and procedures be developed that regarding the privilege to speak that are reasonable and that treat members of the public equally. From my perspective, a rule authorizing any person in attendance to speak for up to five minutes on agenda items, and those items only, would be reasonable and valid, so long as it is carried out reasonably and consistently.
I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.
Robert J. Freeman