A recent decision by the U.S. District Court for the District of Maine in Blanchard v. Augusta Board of Education significantly limits how municipalities can regulate public comment at meetings. While the Court reaffirmed that certain narrow categories of speech may be restricted, it struck down many commonly used public comment provisions as unconstitutional.
While the case provides important guidance, it also leaves municipalities with less clarity on where exactly the line is drawn. As a practical matter, the decision removes many of the “guardrails” municipalities have traditionally relied upon to manage public comment. Municipalities should consult with their attorney and review their public comment policies in the wake of the Blanchard decision.
Key takeaways
1. Restrictions on “gossip” are likely unconstitutional
The Court held that broad prohibitions on “gossip” during public comment are constitutionally problematic unless they are supported by an objective, content-neutral standard. Because whether something counts as “gossip” depends on the content of the speech itself—not a neutral factor like time or manner—such a ban is content-based. The Court found that the Augusta policy provided no objective standard to distinguish “gossip” related to school and education matters from other commentary, and therefore could not survive constitutional scrutiny.
The Court did not provide concrete examples of what an acceptable objective “gossip” standard would look like. As a result, municipalities should be cautious about retaining or adopting any similar language in their public comment policies.
2. Defamation may be prohibited
The Court reaffirmed that defamatory speech—false statements that harm someone’s reputation—falls outside First Amendment protection. Municipalities may continue to prohibit defamatory comments in their public comment policies, provided the prohibition is narrowly drawn to that specific legal category.
3. Broad bans on “abusive” or “offensive” speech are unconstitutional
The Court struck down general prohibitions on “abusive” or “offensive” speech, finding them overly broad. However, it made clear that municipalities are not powerless: policies that target specific, viewpoint-neutral behaviors—such as actual disruption, shouting, threats, or true harassment—or that explicitly defines the prohibited conduct, may still pass constitutional muster.
In practice, this means municipalities should shift away from subjective terms like “offensive” or “abusive” and instead focus on clearly defined, behavior-based restrictions, such as shouting, threats, in their public comment policies.
4. Bans on “vulgar” speech are also likely unconstitutional
The Court treated “vulgar” speech restrictions similarly to bans on “offensive” speech, finding them constitutionally overbroad and not content neutral. However, it recognized that narrowly defined prohibitions on obscenity or hate speech may still be permissible.
Practical implications for municipalities
The Blanchard decision reinforces that public comment periods are constitutionally protected forums, and any restrictions on speech must be carefully tailored. Vague or subjective language gives officials too much discretion, and courts will scrutinize how those policies are applied in practice, not just how they read on paper.
Moving forward, municipalities should avoid subjective terms such as “gossip,” “offensive,” “abusive,” and “vulgar.” Instead, policies should focus on objective, conduct-based restrictions, such as:
- Disruption of the meeting
- Shouting or refusing to yield the floor
- Threats or true harassment
- Hate speech
- Defamation
Ryan Lizanecz is a municipal and land use associate who advises municipalities and private clients on zoning and land use approvals, ordinance drafting, administrative appeals, and local governance matters, bringing a practical, ground-level understanding of how local government operates to every engagement. He can be reached at [email protected].
Bernstein Shur’s Municipal & Governmental Services Group has served as trusted legal counsel to towns, cities, school districts, and other governmental entities across New England for more than 70 years, providing practical guidance on governance, land use, ordinance drafting, public finance, labor issues, and more.