HOULTON, Maine — The Houlton Town Council this week announced new procedural rules banning any public complaints or allegations against town employees during meetings, a move constitutional experts say may violate First Amendment protections of free speech.
Besides restricting the content of the public comments, the new guidelines will also limit each speaker to two minutes.
While the two-minute limit is constitutional if it’s applied evenly, banning all criticism of employees is problematic and could be challenged, said David Hudson, a First Amendment fellow at Freedom Forum who also teaches at the Belmont University College of Law in Nashville.
Criticism of government officials is really the core of free speech under the First Amendment, Hudson said, adding that such bans are being challenged around the country.
During Monday night’s Town Council meeting, Town Manager Cameron Clark presented the change and Council Chairperson Jane Torres read the policy before the public comment period. Until this time, with a few exceptions such as during the medical marijuana ordinance change in 2024, the town did not place time restrictions on speakers.
According to Torres, Dan Nelson, the town’s lawyer, was consulted and approved the wording. The council voted unanimously on the procedure during a special meeting before the regular meeting, she said.
“The procedure was put in place to help the Council Chair run a smoother meeting. Public comment is a time for the citizen to speak their concerns, it is not a time for debate,” Torres said. “After consulting with the Town Attorney we thought it best to read a clear set of rules so we could all get back on track procedurally. “
During the regular council meeting on Monday night, local entrepreneur Patrick Bruce came prepared to talk about his own concerns, but was taken aback by the change.
“I had a bunch of other stuff I was going to talk about tonight, but I’m going to be honest with you, after that I feel like that’s worth noting. That quite honestly could be construed as chilling people’s free speech,” he said during his remarks. “I definitely think it’s not a step in the right direction, 120 seconds for people to comment on the ongoings of the town. Shameful.”
Bruce argued that the policy’s restrictions on speech are not constitutional, and that there is no alternative forum to address concerns over town employees with councilors.
This change was not made lightly, said Torres.
It comes as local officials have been under particular scrutiny this year, with area residents criticizing the town over its controversial video surveillance system equipped with facial recognition technology. Town employees have accessed that system thousands of times, according to data obtained by the Bangor Daily News through a Freedom of Access Act request. And the town has also faced three lawsuits related to FOAA requests by residents.
“While it is true that most meetings do not typically have a large number of speakers, recent experiences, including those tied to FOAA documents and camera issues, highlighted the need for clear, consistent guidelines to ensure that all voices can be heard efficiently, especially as interest in certain topics can fluctuate,” Torres said a day after the council meeting.
Justin Silverman, executive director of the New England First Amendment Coalition, said that such public comment policies run afoul of free speech protections when they limit viewpoints. For example, only allowing the public to speak favorably about certain items restricts a person from freely voicing their opinion.
In Houlton’s case, not allowing complaints or allegations against employees likely amounts to viewpoint discrimination, Silverman said.
“They are saying, ‘We are going to only allow speech that is positive and reflects well on that town employee,’ and not any of the negative feelings you may have about that employee,” he said. “That’s a concerning restriction.”
Silverman said time limits on public comments can generally be reasonable, although there are exceptions, he said.
Hudson, the First Amendment expert, also expressed concern about the impacts of the new public comment rule.
“This is going to have the effect of silencing discourse,” he said.
In two landmark cases in California and Ohio — Baca v. Moreno Valley Unified School District (1996) and Ison v. Madison Local School District Board of Education (2021) — courts have ruled that prohibiting people from making complaints against a municipal or school employee was unconstitutional and that content-based restrictions limit the rights of speakers.
In 2023, the Massachusetts Supreme Judicial Court found in the case of Barron v. Kolenda that a policy governing public comments before the Southborough Select Board violated the state’s free speech protections.
It’s less clear whether a Maine court has ever issued a decision about publicly commenting on local officials. This month, a new state law goes into effect requiring towns to provide a “reasonable opportunity” for public comment at regularly scheduled meetings on matters addressed by the governing body.
However, the provision “does not preempt or restrict” governing bodies from “adopting and enforcing reasonable standards governing public comment, including time limits and conduct standards,” the law says.
Before his death last year, Maine conservative activist Shawn McBreairty of Hampden filed a federal lawsuit accusing members of the local school committee of violating his First Amendment rights when it prohibited negative public comments about district employees. However, the 2023 court action was dismissed following McBreairty’s death.
In Houlton, Torres said that officials recognize that the new policies may be a change for some speakers, adding that they may have to adjust the two-minute time limit.
“We apologize if Mr. Bruce was caught off guard,” she said. “Moving forward, we are committed to informing all participants about these updates in advance to avoid any further confusion and to ensure everyone can share their comments within the new guidelines.”
