What is the name of your state (only U.S. law)? California
When the Medical Board of California has their quarterly public meetings, invariably a member of the public will try to speak about a current complaint or investigation against a doctor. The Board has a policy that they have to announce to the member of the public that they should refrain from talking about open complaints. They always do it in a rude, interruptive way so as to intimidate the member of the public into complying.
This would seem to violate free speech laws and it was my impression from the Keene Bagly Act that the public could talk about any relevant topic at a public meeting. The Board says they don't want the public to influence their deliberations, but often times the cases are very public and appear on TV and in the papers; they have no way of preventing the Board from seeing that information.
Can someone weigh in on this?
While the federal and state constitutions do guarantee free speech, that right is not unlimited. When a government body holds a public meeting or hearing, that body may limit speakers to speaking on particular topics relevant to the meeting or to refrain from topics that the body cannot consider at the meeting. If that were not the case, these bodies would get bogged down hearing all manner of things that are not related to the work at hand. However, in doing so, the board must apply the limitations in a neutral manner; e.g. the board cannot allow speakers with one point of view on a given subject to speak but not allow someone with an opposing view of the same subject to speak. As a federal district court in California stated:
Access to a designated public forum may be limited by the government if it designates public property as available only for “use by certain speakers, or for the discussion of certain subjects, ...” Cornelius, 473 U.S. at 803, 105 S.Ct. at 3449, supra; Perry, 460 U.S. at 45, n. 7, 103 S.Ct. at 955, n. 7; Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (forum limited to student groups); City of Madison Joint Sch. Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (forum limited to subject matter of school board business). If the state does limit access to the forum based on subject matter or speaker identity, access limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral. Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384, 392–393, 113 S.Ct. 2141, 2147, 124 L.Ed.2d 352 (1993) (Lamb's Chapel ).
Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719, 728–29 (C.D. Cal. 1996)(bolding added). Thus, under the federal and state constitutions, a board may limit the topics of discussion so long as that limitation is reasonable in light of the purpose of the forum and the limitation is neutral in terms of the content being restricted. So, for example, the board could limit discussion to only those matters on the stated meeting agenda and refuse to hear any comments on matters outside that agenda and that policy would be constitutional.
The Bagley - Keene Open Meeting Act, which is the Act that regulates open meetings for state agencies (local government open meetings are governed by a similar law known as the Brown Act) does not guarantee speakers a right to speak on any topic they choose. Instead, the act provides that the board must provide “an opportunity for members of the public to directly address the state body on each agenda item before or during the state body’s discussion or consideration of the item.” California Government Code (GC) section 11125.7(a). So the public clearly has a right to comment on matters that are on the agenda, though the board may impose a time limit on speakers. GC § 11125.7(b). Beyond that, the law does not give speakers any express right to speak on matters that are not on the agenda. The act specifies that the board cannot “prohibit public criticism of the policies, programs, or services of the state body.” GC § 11125.7(d). That merely reflects what the federal and state Constitutions require: if discussion on a topic is permitted at a meeting the board cannot prohibit the critical comments and allow only the favorable or neutral comments. It does not expand the areas of discussion that the board must allow speakers to comment on, as the subdivision (d) specifically states that “Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.” Moreover, the law specifically exempts the public from having a right to speak at any meeting governed by GC § 11500 et seq, which applies to various proceedings regarding licensing by the state. GC § 11125.7(f). The law regarding licensing of doctors specifically states that the GC § 11500 et seq applies to proceedings to discipline a doctor (e.g. to suspend or revoke the license). California Business and Professions Code section 2533.2. Thus, it appears that the board may refuse to hear any comments relating to a complaint pending before the board that may result in discipline of the doctor.
A helpful guide to the Bagley - Keene Open Meeting Act provided by the Department of Consumer Affairs may be found here: http://www.dca.ca.gov/publications/bagleykeene_meetingact.pdf
In short, it appears that as long as the board ensures that the restriction is neutral it may prevent members of the public from speaking on matters outside the stated agenda of the meeting so long as the rule is content neutral and specifically may refuse to hear comments (good or bad) in its open sessions regarding doctors who are the subject of disciplinary complaints. If you want to know if the board is violating your rights to speak at a meeting, consult a California attorney familiar with the Bagley - Keene Open Meeting and Brown Acts.
