NCGA Protest Rulings Could Ripple Downward | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

Court decisions could affect state and local government meetings

    RALEIGH — A legal challenge to the General Assembly's new rules on public use and behavior at the legislative complex could reshape public access and speech rights on public property all the way down to local governments. Plaintiffs say North Carolina's protections of free speech at the legislative complex are sufficiently expansive to allow the sorts of raucous rallies that have taken place over the past two General Assembly sessions.

    "It really depends on what kinds of rulings [the courts] make. [They] could be sweeping, or [they] could be very, very limited to that particular building and those particular rules," said Frayda Bluestein, a faculty member at the UNC School of Government who trains local governments on public access issues.

    "It certainly is true that depending on the outcome of this case, or any other case dealing with public forum analysis and free-speech rights, every time a court makes a decision it could affect somebody [who has] that same kind of regulation," Bluestein said.

    "At this point, the ruling applies narrowly to the specific rules enacted by the General Assembly," said Irving Joyner, a North Carolina Central University Law School professor and an attorney for the plaintiffs in the case.

    "But where there are other rules enacted by the city council or county commission or whatever, that ruling could certainly have some persuasive effect on what another judge might determine in those [future] cases," Joyner said.

    The North Carolina branch of the NAACP and five individuals sued House Speaker Thom Tillis, Senate leader Phil Berger, the North Carolina Legislative Services Commission, and other government officials over rules enacted this year to replace 1987 regulations.

    The rules were revised in the face of regular Moral Monday protests led by the Rev. William Barber, the state NAACP president, along with the AFL-CIO and other groups on the legislative grounds and inside the Legislative Building. Capitol police arrested hundreds of people on misdemeanor charges for violating the new rules.

    Orange County Superior Court Judge Carl Fox issued June 16 a temporary restraining order barring enforcement of three of 54 provisions in the new rules because they are "overbroad."

    No trial date has been set, but Noelle Talley, spokeswoman for Attorney General Roy Cooper, who is defending the state, said she expects a hearing to be held this fall.

    Cooper has filed a motion to dismiss the suit, claiming the plaintiffs don't have legal standing in the matter because they have suffered no state or federal constitutional harm and failed to exhaust administrative remedies before making constitutional claims.

    The motion further says that the state officials and Legislative Services Commission are immune from lawsuits, and that an "intelligent and valid interpretation" can be drawn from the new rules, negating the claim they are "unconstitutionally vague."


    One of the provisions Fox prohibited the state from enforcing is "making noise that is loud enough to impair others' ability to conduct a conversation in a normal tone of voice in the general vicinity" of the Legislative Building or Legislative Office Building.

    Another made it a violation to create "any impediment to others' free movement" and "ability to observe the proceedings" in either chamber or in a committee meeting.

    Fox ruled in favor of banning sticks from signs, but determined the rule barring signs "used to disturb" the General Assembly was too vague.

    "For years we've heard feedback that the 30-year-old building rules implemented by previous Democrat leaders were confusing and restrictive," Berger said when the suit was filed. "We responded to those concerns, and I am baffled why Rev. Barber is now trying to turn back the progress we made in increasing building access and free speech."

    The new rules removed content-based restrictions on speech in legislative buildings. Under previous Democratic leadership, handheld signs with political messages were banned. The ban on visitors to the second floor of the Legislative Building, where the House and Senate chambers and leadership offices are located, was lifted.

    Brian Weberg at the National Conference of State Legislatures said building rules vary in every state.

    "Sometimes the building is managed by the legislature. Sometimes it's managed by the executive branch in some administrative agency. So there can be all kinds of different combinations of responsible authorities and rules," Weberg said.

    Challenges to state restrictions on public building space are nothing new, nor are measures to control public behavior.

    In 2011, Wisconsin Gov. Scott Walker pushed a "budget repair act" to close a $137 million deficit. It included measures to end collective bargaining for most public unions, limit pay raises, and terminate automatic union dues collection by the state.

    Ensuing protests drew as many as 100,000 people to Madison, and demonstrators crammed tightly into the Capitol building, refusing to leave, blocking lawmakers, and creating a din.


    After those raucous demonstrations, a Wisconsin State Journal survey of the 50 states determined nearly half do not allow protests inside their Capitol buildings. Of the 26 states allowing protests, all but six require some form of permit to hold even a small demonstration.

    Bluestein said there is a legally significant difference between an official meeting as a forum and a building in which meetings take place. The General Assembly generally has allowed people to mingle and talk on the property, "and it's pretty clear that's an area that has traditionally been used for displays and other kinds of things," she said.

    If the judge cites the unique history of that specific building in declaring the rules are "completely overbearing, that's probably not going to have much of an impact on the Town of Chapel Hill's rules in its Town Hall," she said.

    "There are some aspects of it that could set precedent that would affect other kinds of regulations of public property in this state," Bluestein said. If the judge created a new rule that prescribed precise wording, or ruled that certain language used to define disruption was too vague, other governments would need to examine and alter their rules for similar language and concepts.

    Very little local government case law in North Carolina speaks to the issues addressed in the General Assembly's situation, Bluestein said.

    "My very, very anecdotal impression is there are a lot of local governments that actually don't have clear policies for the spaces around the building or the courthouse park, or the lobby in the town hall," she said. Larger cities and counties are more likely to have policies in place.

    The state constitution "specifically says that every citizen has a right to assemble to present their grievances to legislators, and to instruct them on how they want them to act while they are in the General Assembly," Joyner said.

    "We think the North Carolina constitutional protection is significantly broader than is the federal Constitution," he said, so judicial clarification is important.

    "It's important because it would help to create lawful parameters that the General Assembly police can follow when people come to the General Assembly to articulate grievances or approval of actions," Joyner said.


    The First Amendment is the centerpiece of democracy because it involves the right of people to participate in the decision-making process, to voice their opinions about what laws are enacted, and decide how laws are to be enforced, he said.

    "Where the people don't have a right to speak, you're talking about a totalitarian government, a military authority that stifles the rights of people to speak, and to assemble, and to join together in collective bodies to state their position," Joyner said.

    Elective government in a constitutional republic "can be messy, and it can be antagonizing. It can be annoying," he said.

    "But legislators are elected by the people, and if they don't have strong skin, tough skin to be able to listen to and respond to the criticisms of the people they represent, then they ought not to be their representatives," Joyner said. "They ought to be on the sidelines as spectators."