Hilton Head council meeting derails into First Amendment debate, mayor calls it a ‘circus’
Despite a packed agenda for a Tuesday meeting that lasted more than six hours, one highlight from the Jan. 17 Hilton Head Town Council meeting had more to do with federal law than the business at hand.
Some in the crowded council chambers were left confused — others, perhaps annoyed, as the situation progressed — when an individual who signed up to speak approached the podium brandishing a power of attorney document, looking to cede their three-minute speaking period to well-known and controversial government critic Skip Hoagland.
Hoagland was given the first three minutes to speak, continuing his lengthy campaign to demand more fiscal transparency from the Hilton Head-Bluffton Chamber of Commerce. Council denied him the additional three minutes.
This led to an argument between Hoagland and town officials, with Hoagland challenging the town’s lawyers to debunk the legality of his maneuver. Questions about how the First Amendment applies to, or perhaps supersedes, local decorum and meeting rules were flung before Mayor Alan Perry sent the meeting into a five-minute recess to end what he’d described as a “circus.”
Hoagland later stepped back from his demand for extra time and gave remarks after later agenda items.
Since the meeting, Hoagland has argued in emails to Hilton Head officials throughout the week that council refusing to cede an extra three minutes for him to speak, “severely violates the First Amendment under our Constitution.” A constitutional and U.S. Supreme Court law expert told the Island Packet it’s the First Amendment that gives municipalities some leeway in setting rules for public comment during their meetings.
“It’s First Amendment 101,” said Joseph Thai, a Harvard law graduate, member of the American Law Institute and professor of constitutional law and the U.S. Supreme Court at the University of Oklahoma.
Thai said events like town council meetings are a limited public forum, where municipalities or other government bodies can create reasonable rules, such as time limits to speak or disallowing speakers to cede time to one another.
While the Town of Hilton Head doesn’t have a rule in its own codes specifically stating no speaker may hand off time to another, it limits each speaker to three minutes and states no one but the “person having the floor” and council members should speak. The Beaufort County School Board, however, does directly state no speakers may give the floor to another during their speaking period.
“The guard rail is that the council cannot discriminate on the basis of viewpoint. It can certainly set time rules, so that you can only speak within a certain period of time. It can certainly set speaker rules, so you must sign up to speak, and you only get to speak when it’s your turn,” Thai said. “Other than those basic guard rails, a town is free to keep order and keep things moving along.”
There are other situations when a government may have more or less ability to control speech, Thai said. In a traditional open forum, such as on a street, sidewalk or public park, the government would have no right to limit topics or time limits. Non-public forums, such as “the DMV or the governor’s mansion” yield the most authority to governments to disallow speech or assembly.
The town was also within its rights not to recognize the power of attorney, Thai said.
“The touchstone is whether or not the speech restriction is reasonable in this town council meeting, and if the basic restriction is you only get three minutes, they can enforce that, regardless of what clever attorneys try to do,” Thai said. “You could imagine someone being completely disruptive by having 10 people sign up and give their powers of attorney. There are no private legal rights to trump this town council’s ability to control the town council meeting to ensure that everyone gets a fair and equal shot at informing their elected officials about their viewpoints.”
Controversy on enforcement
Town or county bodies may be legally entitled to enforce these codes, but the issue of how to enforce them has been a flash point before.
Beaufort County Sheriff P.J. Tanner told local officials in 2020 that he and his deputies would not physically remove speakers from public meetings based solely on if an official disagreed with the speaker’s demeanor or behavior.
“If you escort (a speaker) out of a public meeting in a public building because you didn’t like the way they were behaving themselves … it’s going to be a First Amendment issue,” Tanner said at a January 2020 meeting. At the same meeting, Tanner suggested the proposed ordinance may as well be deemed the “Skip Hoagland ordinance,” as confrontations between Hoagland and elected officials had reached a boiling point at the time.
Hoagland was escorted from a Bluffton town meeting by law enforcement in 2015, and filed a lawsuit against the town in 2017. The case recently concluded, with a jury ruling against Hoagland’s false arrest, assault and false imprisonment claim in December 2022.
Hoagland told the Island Packet he wanted the case tried over First Amendment rights.
Bob Bromage, Hilton Head director of public safety, said it’s highly unlikely anyone speaking at a town council meeting would be removed by force unless they were endangering others or otherwise breaking the law.
“(Speakers) wouldn’t be escorted out unless there’s a violation of law, whether it be assault and battery or disorderly conduct,” Bromage said. “But a violation of law would warrant their removal.”
After the meeting, Hoagland said the attempt was simply an instance of him “testing the limits” of what he could do to keep public officials accountable.
This story was originally published January 21, 2023 at 10:51 AM.
