The American Civil Liberties Union of North Carolina Legal Foundation ("ACLU-NCLF")was contacted last week by Guilford County resident Jodi Riddleberger ("C4gc"). Ms. Riddleberger has requested our assistance in connection with a recent decision by the Guilford County Board of Commissioners ("the Board") to ban any and all multimedia presentations during prescribed public comment periods of Board meetings. After conducting an initial investigation, we have concerns that your Board is violating Ms. Riddleberger's rights under the Free Speech Clause of the First Amendment of the United States Constitution.
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It appears that the county's actions with regard to Ms. Riddleberger, as well as the passage of the ban on multimedia presentations during public comment period constitute violations of the First Amendment. First, we believe that the general requirement that individuals can show videos only if approved and placed on the agenda is an unconstitutional prior restraint on speech. Further, Chairman Alston's specific comments and actions against Ms. Riddleberger suggest that these new rules, while they appear to be content neutral, are a thinly-veiled disguise for impermissible content discrimination, or even viewpoint discrimination....
The actions of the chairman in response to Ms. Riddleberger's request to be placed on the December 1st agenda, as well as the language in the new proposed policy, suggest that the chairman has unbridled discretion to make decisions about who and whater material can be placed on the meeting agendas. There appear to be no standards in place to guide the chairman's actions. That is impermissible under the First Amendment.
Further, the decision to deny Ms. Riddleberger's request to be placed on the December 1st agenda and to show a video that appeared to relate specifically to board business, while noting that a request by the library would be approved, demonstrates that the chairman is making these decisions at least based on the content, and maybe the viewpoint, of the message. Content-based discrimination triggers strict scrutiny review — even higher than that for content-neutral regulations as described above. Under strict scrutiny, a regulation must be necessary to serve a compelling governmental interest by the least restrictive means available.... It seems unlikely that the county can meet this very heavy burden. Further, "[i]n its practical operation," the board's action and proposed policy may "go even beyond mere content discrimination," which is patently unconstitutional under the First Amendment.