Summary
In State v. Barthel, the N.C. Court of Appeals vacated William Barthel’s convictions of disrupting an official meeting and resisting a public officer.
At a special meeting of the Avery County Board of Commissioners, Barthel stood silently in the back of the boardroom. As the public comment period was about to begin, he unraveled a banner which contained vulgar and offensive language about a commissioner.*
Barthel refused to remove the banner after law enforcement’s request. This led to an argument and Barthel’s physical removal from the meeting. Barthel was arrested and convicted of disrupting an official meeting and resisting a public officer pursuant to N.C. Gen. Stat. §§ 143-318.17 and 14-223(a).
Disrupting an Official Meeting
Barthel argued that the Board’s Chairman who requested his removal and the law enforcement officer who physically removed him violated his First Amendment rights.
As explained by the Court, the government cannot restrict speech under the First Amendment “because of its message, its ideas, its subject matter, or its content.” However, speech is not limitless. The government has a right to limit certain types of unprotected speech occurring at certain public locations. There is a public forum analysis that courts will engage in to determine: 1) whether the First Amendment protects defendant’s speech, 2) what forum is involved, and 3) whether the government’s reasons for excluding the speech satisfies the requisite standard.
Barthel’s banner was protected speech under the First Amendment.
Here, the Court found that Barthel’s speech (his banner), while crude and offensive, was protected because criticizing the public official fell short of the standard for one type of speech that can be restricted, referred to as “fighting words.” Fighting words consist of personally abusive epithets inherently likely to provoke a violent reaction. As the law enforcement officer admitted, he made contact with Barthel right as he began to unroll the banner, so the banner couldn’t have created an immediate violent reaction because no one had time to see it.
The meeting was a limited public forum, requiring viewpoint neutrality.
The Board created a limited public forum (the most restrictive type of government property for speech) by allowing public comment only on agenda items. Thus, the issue was whether Barthel’s removal was reasonable and viewpoint-neutral. In limited public forums, the government may limit topics, but cannot discriminate by viewpoint. Because Barthel’s speech essentially criticized a commissioner’s performance, the Court determined that Barthel’s speech fell squarely within those content boundaries and that law enforcement did not apply N.C. Gen. Stat. § 143-318.17 in a viewpoint-neutral manner. Instead, they engaged in viewpoint discrimination by suppressing Barthel’s personal insults and offensive language.
Barthel’s removal, the Court said, served only to “censor speech the officials found offensive,” which is impermissible even in a limited public forum. With direct evidence of the link between Barthel’s viewpoint and his arrest, the Court concluded the government’s action was not viewpoint neutral. Barthel’s removal, the Court said, served only to “censor speech the officials found offensive,” which is impermissible even in a limited public forum. With direct evidence of the link between Barthel’s viewpoint and his arrest, the Court concluded the government’s action was not viewpoint neutral.
Barthel’s removal was unreasonable and based on viewpoint discrimination.
The government claimed law enforcement officers were permitted to act preemptively in removing Barthel before any actual disruption occurred to maintain order, but the Court disagreed.
Reasonable restrictions necessary to facilitate public comment on government business would include restricting Barthel to speak on agenda items, enforcing time caps, or prohibiting actual disruptions. However, banning offensive words and criticism of any of the commissioners could not be done “under the guise of maintaining order.” Ruling otherwise would, as the Court put it, grant the government the unlimited discretion to silence speech, including unpopular speech based on speculative concerns.
Barthel’s removal following his silent display of a banner criticizing a commissioner’s job at the back of a boardroom caused no obstruction or disturbance. It was clear to the Court that the offensive words themselves drove Barthel’s removal. Consequently, the Court determined that his removal was unreasonable.
As for the resisting a public officer charge, the Court found that because the arrest violated the First Amendment, it was unlawful and therefore Barthel had the right to resist using reasonable force, which he did since his resistance was primarily verbal and not excessive. As a result, both convictions were vacated.
Insights for Local Governments
Barthel stands as an important reminder that when the government sets up a limited public forum, like a public comment period during its meetings, it must preserve viewpoint neutrality. Local boards should carefully consider revising rules and policies in accordance with First Amendment jurisprudence, and avoid regulating viewpoint or content during public meetings.
*The exact wording of the banner can be found in the court’s opinion: https://appellate.nccourts.org/opinions/?c=2&pdf=44884
