Can a South Carolina municipal council limit a speaker to a single three-minute slot at public comment, even if the speaker holds power of attorney to speak on someone else's behalf?

Plain-English summary

A few councils in Senator Tom Davis's district had a problem. They cap public comment at three minutes per person, but a speaker had started using up his three minutes, then trying to keep going by claiming he was now speaking as someone else's attorney-in-fact under a power of attorney. The councils asked: do we have to give him another three minutes for the designating person, or can we cut him off?

AG Wilson said the councils can cut him off. The rule the AG actually endorses is more nuanced than "one three-minute slot per body in the room." A speaker can decide whose time to use: their own three minutes, or the three minutes that belong to a person who has authorized them to speak. They just cannot have both. The same rule extends naturally to corporate entities (LLCs, LLPs, corporations) that ask a representative to speak on their behalf.

The legal framework that gets us there has three pieces.

First, municipal councils have wide discretion to set their own rules of order. S.C. Code § 5-7-250(b) directs them to "determine [their] own rules and order of business," subject only to the limit in § 5-7-250(c) that the rules cannot conflict with general state law, including the South Carolina Freedom of Information Act.

Second, FOIA does not actually require that members of the public get to speak at all. The AG cites its 2019 opinion that no "per se right to speak at a public meeting" exists under FOIA. FOIA requires that meetings be open and that minutes be kept; it does not require a public-comment period. So a council that offers any public-comment period is exceeding what FOIA requires, and it has corresponding latitude to set the terms of that period.

Third, the First Amendment limits are about content neutrality and order, not about giving every speaker unlimited time. The AG draws on Steinburg v. Chesterfield County Planning Commission (4th Cir. 2008), which holds that presiding officers have discretion to cut off speech they reasonably perceive as disruptive of the orderly progress of a meeting, "whether by virtue of its irrelevance, its duration, or its very tone and manner." A three-minute cap that applies to everyone is content neutral and reasonably related to maintaining order. A no-stacking rule is also content neutral. Both pass First Amendment review.

The attorney-in-fact wrinkle does not change the analysis. A speaker authorized to speak for another person can use the designating person's three minutes instead of their own, but cannot get both. The AG describes this as a rule "designed to prevent a single speaker and a single viewpoint from dominating public comment periods to the exclusion of other interested parties."

What this means for you

For municipal council members or council attorneys drafting public-comment rules: Three-minute caps with no stacking are defensible. Make sure your rule is content neutral, applies uniformly, and gives the presiding officer authority to enforce time limits. Build in a clear procedure for speakers who claim to be representing others (corporations, organizations, individuals via power of attorney): they can use someone else's time slot but not in addition to their own. Document the rule on your official rules of order under § 5-7-250(b).

For citizens who want to speak at council meetings: You have no constitutional right to a public-comment period at all, and no constitutional right to stack time. What you do have is a right to use a public-comment period (if the council offers one) on the same terms as everyone else. If you want to speak on behalf of an organization or another person, you can usually do that within the standard time limit, but you cannot extend your own slot by doing so.

For activists or advocacy groups planning meeting strategy: Bring more speakers, not longer ones. If your group has six people who want to be heard, six speakers at three minutes each is the path. Power-of-attorney workarounds will not get past most South Carolina councils after this opinion.

For attorneys representing clients at public meetings: Decide in advance whose time you are using. If your client has their three minutes and you have yours, pick which one to use at the meeting. The council can require you to choose.

Common questions

Q: Does South Carolina FOIA actually require public-comment periods?
A: No. FOIA requires that meetings be open, that notice be given, and that minutes be kept (S.C. Code § 30-4-60 et seq.), but does not require that members of the public get a chance to speak. Most South Carolina councils provide public-comment periods voluntarily. Once a council offers one, it must run the period without content discrimination, but the council still has latitude to set time limits, registration requirements, and order-keeping rules.

Q: What about the South Carolina Constitution? Does Article I provide more speech protection?
A: South Carolina Article I, § 2 provides analogous free-speech protections to the U.S. First Amendment. South Carolina courts generally interpret it consistently with federal First Amendment doctrine. The AG opinion does not identify a separate state constitutional argument that would change the analysis.

Q: What is Steinburg and why is it controlling?
A: Steinburg v. Chesterfield County Planning Commission, 527 F.3d 377 (4th Cir. 2008), is the leading Fourth Circuit decision on First Amendment limits in local government public meetings. It holds that presiding officers have discretion to cut off disruptive speech, including speech that disrupts by virtue of "its irrelevance, its duration, or its very tone and manner." South Carolina is in the Fourth Circuit, so federal First Amendment law applied to municipal meetings comes through Steinburg.

Q: Can a speaker use power of attorney to speak on someone's behalf?
A: Yes, but only within one three-minute slot. The speaker can use either their own time or the designating person's time, but not both. The AG opinion treats power of attorney like any other form of representation (a corporation sending a representative, an organization sending a spokesperson): you get the three minutes assigned to whichever person you are representing.

Q: What if the designating person could not attend the meeting?
A: The fact that the person could not attend does not buy the representative an extra slot. The rule is one slot per person, not one slot per person physically present plus an additional slot per absentee they represent. If the absent person is the entity speaking through the representative, the representative gets that person's slot. If the representative also wanted to speak in their personal capacity, they would have to choose.

Q: Can a council ban speaking on someone else's behalf entirely?
A: That would be a content-neutral procedural rule, but it would face scrutiny under Steinburg's requirement that restrictions be "reasonably related to maintaining order and fair progress." A flat ban might survive review, but only if the council can articulate a reason; a no-stacking rule plus an option to represent others is more obviously reasonable.

Q: Can a council remove a speaker who runs over time?
A: Yes, under S.C. Code § 30-4-70(d), an individual may be removed if they "wilfully disrupt[] a meeting to the extent that orderly conduct of the meeting is seriously compromised." Repeatedly running past time after warnings can constitute willful disruption. The AG cites its prior opinion on this point (2019 WL 5669045).

Q: Does the rule apply to LLCs and corporations sending representatives?
A: Yes. The AG opinion expressly addresses corporate representation. An LLP, LLC, or corporation that sends a single spokesperson is using one slot, the entity's slot. The spokesperson cannot also use their own personal slot to double up.

Background and statutory framework

The three-layer regime governing public comment at South Carolina municipal meetings:

1. Municipal home rule for procedure (S.C. Code § 5-7-250(b)). Councils set their own rules of order, subject to consistency with general law and FOIA.

2. FOIA's open-meetings requirements (S.C. Code Chapter 30, Title 4). Meetings must be open, noticed, and minuted. FOIA also gives presiding officers authority to remove willful disrupters (§ 30-4-70(d)).

3. First Amendment limits, primarily through Steinburg. Content neutrality plus reasonable order-keeping is the threshold. A rule fails only if it discriminates by viewpoint or substantively impairs the speaker's ability to communicate.

This opinion sits in a line of SC AG opinions on the same topic, including:

• 2023 WL 3975070 (June 5, 2023): Town of Bluffton rules upheld.
• 2019 WL 5669045 (Oct. 17, 2019): no per se right to speak at public meetings under FOIA.

The new wrinkle in this opinion is the attorney-in-fact stacking question. The AG resolves it consistently with the existing framework: stacking is the problem, representation is fine.

Citations and references

Statutes: S.C. Code § 5-7-250(b) (municipal rules of order); § 5-7-250(c) (consistency with general law); § 30-4-60 (FOIA open meetings); § 30-4-70(d) (removal for disruption).

Cases: Steinburg v. Chesterfield County Planning Commission, 527 F.3d 377 (4th Cir. 2008) (presiding-officer discretion).

Prior AG opinions referenced: Op. S.C. Att'y Gen., 2023 WL 3975070 (June 5, 2023) (Bluffton rules); Op. S.C. Att'y Gen., 2019 WL 5669045 (Oct. 17, 2019) (no per se right to speak under FOIA); Finger opinion (cited but not dated in this letter).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-a-municipal-council-s-authority-to-limiting-public-speakers-to-a-set-amount-of-time-during-public-comment-at-a-public-meeting/
• Original PDF: https://www.scag.gov/media/5wkdck4q/davist-os-11030-final-opinion-5-27-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

May 27, 2025

The Honorable Tom Davis
Member
South Carolina Senate
Post Office Drawer 1107
Beaufort, SC 29901-1107

Dear Senator Davis:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter requests an opinion addressing the following:

Some members of the councils for the municipal and county governments in my state senate district have asked for clarification re: one of their councils' rules for comments solicited and received from members of the public at their meetings. I request your assistance in formulating a response to these inquiries.

Enclosed are the rules for the Town of Hilton Head Island, the Town of Bluffton, and Beaufort County. In each, the speaker is 1) limited to a three-minute comment; 2) required to be respectful; and 3) prohibited from speaking on another's behalf. My request for your assistance pertains to the third noted restriction.

In recent months, a member of the public (the "Speaker") has, after speaking for his allotted three minutes, attempted to speak on behalf of another person (the "Designating Person") as an attorney-in-fact. For purposes of your opinion, assume the Designating Person has complied with all relevant sections of the South Carolina Uniform Power of Attorney Act in attempting to empower the Speaker.

Is a local government council obliged to allow the Speaker to provide a public comment on behalf of the Designating Person as the latter's attorney-in fact, even after the Speaker has already spoken for the three minutes allotted to him personally, or is the council legally justified in denying the Speaker from speaking?

Law/Analysis

As an initial matter, it should be noted that this Office is issuing an expedited opinion, and it should be read in the context of this Office's prior opinions and other applicable law. This Office's opinion to Terry Finger examined this scenario and concluded that because the rules appeared content neutral and reasonably related to maintaining order, a court was unlikely to find a facial violation of the First Amendment's protections for speech.

The third and final regulation states, "Meeting attendees may not donate, transfer, yield, or give all or any portion of their speaking time to another person." Based on our follow up conversation, this Office understands that this regulation is intended to be read in conjunction with the second regulation above which establishes a time limit "whether the person is speaking on their own behalf or as an agent for others." A speaker would be allowed to speak on behalf of another, but, even if speaking on behalf of multiple people, the speaker would not be permitted to stack each person's allotted time and defeat the intended three-minute time restriction. This Office has not found a case directly confronting such a rule in the context of a public meeting of a public body. The First Amendment case law discussed above counsels that restrictions on speech should be content neutral. Steinburg, supra. Additionally, presiding officers "have discretion ... to cut off speech which they reasonably perceive to be, or imminently to threaten, a disruption of the orderly and fair progress of the discussion, whether by virtue of its irrelevance, its duration, or its very tone and manner." Steinburg, 527 F.3d at 390 (internal quotations omitted). Because the regulation is content neutral and appears reasonably related to maintaining order and fair progress of a meeting, a court would likely find it does not facially violate the First Amendment protections of speech.

Op. S.C. Att'y Gen., 2023 WL 3975070, at 5 (June 5, 2023). Your letter presents an additional level of detail in that a speaker is designated to speak on another's behalf as an attorney-in-fact. It is this Office's understanding that, as represented in the prior opinion for the Town of Bluffton, such a designee would be allowed to speak as an attorney-in-fact, but would not then be allowed to continue beyond that time for his own time or that of additional persons. The speaker can use the time period on his behalf, that of the designated person, or both. This arrangement could also be appropriate to allow a speaker to address council on behalf of LLPs, LLCs, and corporations. This prohibition on stacking appears designed to prevent a single speaker and a single viewpoint from dominating public comment periods to the exclusion of other interested parties. A rule of this type has not been addressed by our state courts, but the opinion interpreted it to be consistent with a presiding officer's discretion to ensure the orderly and fair progress of a public meeting.

Municipal councils are directed to "determine [their] own rules and order of business" which establish the procedures for conducting public meetings. S.C. Code § 5-7-250(b). Municipal councils have wide discretion over their rules of order so long as they do "not conflict with the general laws of the state" and more specifically the South Carolina Freedom of Information Act (S.C. FOIA"), S.C. Code § 5-7-250(c).

The S.C. FOIA provides that "[e]very meeting of all public bodies shall be open to the public unless closed pursuant to § 30-4-70 of this chapter." S.C. Code § 30-4-60. While these meetings are open to the public, the S.C. FOIA clarifies that an individual may still be removed if he "wilfully disrupts a meeting to the extent that orderly conduct of the meeting is seriously compromised." S.C. Code § 30-4-70(d). This Office previously found these statutes do not establish "a per se right to speak at a public meeting under FOIA." Op. S.C. Att'y Gen., 2019 WL 5669045, at 5 (October 17, 2019). Although the Freedom of Information Act may not require providing an opportunity to speak at a public meeting, we stress that this point should not be construed to deny interested parties an opportunity to be heard at a public hearing.

Op. S.C. Att'y Gen., 2023 WL 3975070, at 2-3 (June 5, 2023). Assuming the attorney-in-fact is attempting to speak at a public meeting, it is this Office's opinion that municipal council has the authority to prohibit him from stacking his time with that of other persons beyond an allotted time period permitted for an individual.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Solicitor General