August 23, 2021

VIA EMAIL
City of Kingston Common Council
City Hall
420 Broadway
Kingston, NY 12401
commoncouncil@kingston-ny.gov

Kevin R. Bryant
City of Kingston Corporation Counsel
City Hall
420 Broadway
Kingston, NY 12401
kbryant@kingston-ny.gov

Re: Ban on Signs at City of Kingston Common Council Meetings

Dear Common Council Members and Corporation Counsel Bryant:

On behalf of the New York Civil Liberties Union, we write to express

significant concerns about the reported decision by City of Kingston Common
297 Knollwood Road, Suite 217
White Plains, NY 10607 Council (“Council”) to ban all signs at its August 3, 2021 public meeting (the
nyclu.org “Meeting”). Bodies like the Council exist to facilitate the conduct of the peoples’
business and to bring community concerns before them. In light of its purpose,
Shannon Wong
Assistant Director of
the Council’s signage ban runs counter to sound public policy, and also violates
Regional Offices fundamental First Amendment principles.
Lucia Hermo Moreover, the way in which the complete signage ban was adopted here
Hudson Valley
Deputy Director raises questions about the purpose of the ban. After allowing signs at all Council
meetings to date, the Council apparently decided to change its policy and ban
Donna Lieberman them completely for the Meeting – to the surprise of all attendees, who were
Executive Director
informed of the ban by a sign at the door of City Hall that day that said, among
Olivier Sylvain other things:
President
“ATTENTION: No signs or posters allowed in the building…”

We are unaware of the process by which such ban was discussed or

formally promulgated, but have reason to believe that it was adopted to prevent
the free expression of residents’ views about a particular item on the Meeting
agenda, and may well have been intended to suppress the expression of a
particular viewpoint. The Council was doubtlessly aware that residents planned
to attend the Meeting and express their views on the issue, and the ban appears to
have been put in place just that day. Needless to say, that is especially troubling to
us, as it flies in the face of the First Amendment itself.

We believe that a complete ban of all signs at Council meetings is

unconstitutional. Allowing the public to hold reasonably-sized signs that do not
disrupt an open meeting would be a reasonable accommodation that properly
balances the public’s freedom of expression1 and right of access to open
meetings2 with the Council’s need to ensure the ability to conduct its business.
Accordingly, we urge you to bring the Council’s policies and practices into
constitutional compliance, permitting such signage to facilitate the valuable
insight of community members to inform the decisions of their elected
representatives on the Council.

The Council’s Signage Ban Contravenes Basic First Amendment Principles

It is well-settled that anyone may attend meetings of local public bodies in

New York. This right of access is guaranteed by New York’s Open Meetings
Law,3 the First and Fourteenth Amendments to the United States Constitution and
Article I, s. 8 of the New York State Constitution.4 The only restrictions on this
right of public access relate to keeping order in the meeting. Though the Council
is authorized to adopt rules for its operations,5 its authority is not unlimited.
Council meetings are limited public forums and, as such, any limitation on speech
must be reasonable in light of the purpose of the forum.6 Further, any restrictions
imposed must be viewpoint-neutral.7 Thus, a governmental body may not use an
improper reason, such as a dislike for a particular speaker’s viewpoint, as a basis
to silence a person or exclude him/her from a public meeting.8

The protection of public access to open meetings serves fundamental

constitutional values. The very purpose of an open, public government meeting is
to allow the public to understand, inform, petition and influence its government.
In light of this purpose, it is unreasonable to prohibit all signs, including
reasonably-sized signs that would not disrupt the meeting.9

Under the Federal and New York Constitutions, only those rules of
decorum that would prohibit actual disturbance or impeding a meeting are

1
Displaying signs that intend to communicate a message is an expressive activity protected by the
First Amendment. See We the People, Inc., of the U.S. v. Nuclear Regulatory Comm'n, 746 F.
Supp. 213, 216 (D.D.C. 1990); Marcavage v. City of New York, 689 F.3d 98, 104 (2d Cir. 2012).
2
See N.Y. Public Officers Law Section 103(a) (McKinney’s 2018) (“Every meeting of a public
body shall be open to the general public….”).
3
Id.
4
U.S. Const. amends. 1 & 14.
5
I note that the Council does not appear to have any published rules relating to its operations
public meetings.
6
See Devine v. Village of Port Jefferson, 849 F. Supp. 185, 189-90 (E.D.N.Y. 1994) (analyzing
village board meeting as a limited public forum); see also City of Madison Joint School Dist. No.
8 v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 174-76 (1976) (suggesting that any
portion of a meeting of a public body that the body opens for public comment is a limited public
forum); Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010) (holding that First
Amendment protections of a limited public forum applied not only during the public comment
period of the meeting, but also throughout the entire meeting), cert. denied, 132 S. Ct. 112 (2011).
7
See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (stating that
“[t]he State may not exclude speech where its distinction is not ‘reasonable in light of the purpose
served by the forum,’ nor may it discriminate against speech on the basis of its viewpoint.”
(quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)).
8
See White v. City of Norwalk, 900 F.2d 1421,1425 (9th Cir. 1990).
9
See We the People, Inc., of the U.S. v. Nuclear Regulatory Comm'n, 746 F. Supp. 213, 216-18
(D.D.C. 1990) (signs that do not block the public’s view are permissible).
reasonable.10 Because no signs were reviewed on a case-by-case basis – but were
banned outright -- the Council cannot say that the signs caused, or would have
caused, an actual, substantial disruption in violation of the Council’s norms.

The Complete Signage Ban is Inconsistent with New York’s Open Meetings
Law

New York’s Open Meetings Law 11 (“Open Meetings Law”) provides

members of the public with the right to observe and listen to a variety of meetings
of public bodies. Although the Open Meetings Law itself is silent on signage at
such meetings, several Open Meetings Law Advisory Opinions address signage
expressly, and all fail to support the Council’s outright ban. In Open Meetings
Advisory Opinion 529612, the Committee on Open Government of the State
Department of the State of New York (“Committee”) provided guidance on the
ability of government bodies to regulate signs at meetings open to the public. In
doing so, the Committee listed as primary considerations: whether signs would be
disruptive or obtrusive, whether the signs or signholders would block a person
from observing the proceedings or block an exit or create a fire code violation, or
would be obscene. Nowhere did the Committee suggest that signs could be
banned outright. Indeed, as noted above, to pass constitutional muster, any
regulation of signage in a limited public forum must be reasonable, guided by the
above factors, and certainly must be viewpoint-neutral on its face and in its
application.

Conclusion

Permitting citizens to engage with their local government is a critical role

of public officials in a democracy. We request that you examine the Council’s
current complete signage ban to ensure that its open meetings are conducted with
transparency and permit residents to observe meetings and express their concerns
without disrupting or obstructing the Council’s proceedings – as is their clear
right under the First Amendment and New York State law.

If you have any questions, please feel free to contact Beth Haroules at
212.607.3325. Thank you.

10
See Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010) (“a city's ‘Rules of
Decorum’ are not facially over-broad where they only permit a presiding officer to eject an
attendee for actually disturbing or impeding a meeting. This does not mean that an attendee can be
ejected because of constructive disruption, technical disruption, virtual disruption, nunc pro tunc
disruption, or imaginary disruption.”)(citing White, 900 F.2d at 1424-26), cert. denied, 132 S. Ct.
112 (2011).

11
See Footnote 3, above.

12
Advisory Opinion 5296 may be found at:
https://docsopengovernment.dos.ny.gov/coog/otext/o5296.doc. See also Advisory Opinion 3845,
which may be found at https://doccs.dos.ny/coog/otext/o3845.htm.
With appreciation,

Beth Haroules,
Senior Staff Attorney

Shannon Wong
Assistant Director of Chapters