In response to a resolution passed by the Oyster Bay Town Board on October 6, 2020, that purports to create rules of decorum at Town Board meetings and seeks to prohibit inappropriate behavior during board meetings, a Town resident commenced an action in the United States District Court for the Eastern District of New York challenging the resolution’s constitutionality. The complaint was filed by Kevin McKenna, who describes himself as a citizen advocate and editor in chief of the Town of Oyster Bay News, and is a person who regularly comments at Town Board meetings. Mr. McKenna claims that Resolution No. 567-2020 is a violation of the United States and New York State Constitutions’ protection of free speech, freedom of association, and freedom of the press, and seeks declaratory and injunctive relief, as well as monetary damages against the Town.

The resolution states, in part, that “[s]peakers shall observe the commonly accepted rules of courtesy, decorum, dignity and good taste and shall not use foul language, display unacceptable behavior or be disruptive of the proceedings. Speakers may not make personal comments about public officials, town residents or others. Members of the public and Board members shall be allowed to state their positions in an atmosphere free of slander, threats of violence or the use of the Board meeting as a forum for politics . . . Any person making offensive insulating, threatening, insolent, slanderous or obscene remarks or gestures, or who becomes boisterous, or who makes threats against any person or against public order and security while in the Board Room, either while speaking at the podium or as a member of the audience, shall be forthwith removed at the direction of the presiding office[r]. Any person removed from a public meeting at the direction of the presiding officer may be charged with disorderly conduct in accordance with New York State Penal Law Section 240.20.” Those who violate the resolution face a sentence of up to 15 days in jail.

On November 16, 2020, U.S. District Judge Gary R. Brown granted McKenna’s motion for a temporary restraining order and issued an injunction preventing the Town of Oyster Bay from enforcing the recently adopted rules. Judge Brown scheduled a court conference on December 2, and directed the Town’s attorneys to either rewrite the resolution prior to that date or face a hearing on its constitutionality a few days later. A statement issued by the Town suggests that it will “slightly alter verbiage while maintaining the same intent” prior to the upcoming conference.

The injunction drew praise from journalists and other advocates for free speech who said the resolution has a chilling effect on the First Amendment. The Town, on the other hand, characterized the lawsuit as being frivolous and an attempt to hamper good government, and the obligation to defend against its claims a waste of taxpayer money. In a recent Newsday story, Nassau County District Attorney Madeline Singas expressed doubt that charges for violations of the new rules would lead to prosecution.

This case will undoubtedly be monitored closely by those who regularly appear at public hearings and use that forum to voice criticisms of actions by their local government.