1st Circuit agrees: Register to vote or keep quiet at town meetings

Friday, February 29, 2008

Unless you’re a registered voter in Egremont, Mass., you have no right to speak at town meetings, a federal appeals court ruled recently.

Miriam and Thomas Curnin brought suit in May 2006 against the town of Egremont claiming that its policy of barring residents who aren’t registered voters from speaking at town meetings, even though they own property and pay property taxes there, violated their First Amendment rights.

The Curnins alleged that they were not permitted to speak at three previous town meetings in which issues important to them as taxpayers were discussed. On April 13, 2007, they filed a motion seeking a preliminary injunction to allow them to speak at the annual town meeting in May. On April 25, a federal judge denied the motion and the Curnins appealed to the 1st U.S. Circuit Court of Appeals.

The Curnins argued that the judge erred by not considering the case using forum analysis. They maintained that Egremont’s town meetings qualifed as designated public forums because they are open to the public, take place on government property and involve important matters of public interest.

In Curnin v. Town of Egremont, decided Nov. 29, 2007, the 1st Circuit rejected this argument. Judge Sandra L. Lynch wrote for the three-judge panel that forum analysis would be inappropriate because “the town meeting is a legislative body in deliberation. The Curnins are not registered to vote in Egremont and therefore are not town meeting legislators. The First Amendment does not give nonlegislators the right to speak at meetings of deliberating legislative bodies, regardless of whether they own property or pay taxes.”

The court noted that in Massachusetts, town meetings function as the town’s legislative branch; laws are discussed and made during the meeting. All registered voters are allowed to speak and vote at these meetings and are considered legislators; all others are non-legislators and have no First Amendment right to address the deliberating legislative body. Lynch wrote, “There is no doubt the Curnins have a legitimate interest in attempting to influence the policy choices made by the town… . That does not create a right to speak before a legislative body.”

The Curnins also alleged viewpoint discrimination in the granting of different speaking rights to voters and non-voters. The 1st Circuit panel also rejected this claim. Lynch noted that the right to speak is not based on viewpoint at all; it is instead based on who is a legislator/registered voter and who is not a legislator/non-voter.

The 1st Circuit further denied the Curnins’ claim that the moderator of the town meeting has an impermissible amount of discretion that could enable him to engage in viewpoint discrimination. Lynch noted that some measure of discretion is inherent in the role of moderator and that no evidence was presented to support this claim.