Was it public or private? The fate of the Kootenai County Republican town hall incident rests on this element of the free-speech debate

At the heart of the First Amendment lies the right to free speech – no government entity can restrict speech, even if it finds it insulting, unfavorable or disingenuous .

“The government cannot step in and say, ‘We don’t like it.’ At its core, that is what the First Amendment means,” former lawyer and College of Idaho Constitutional law professor McKay Cunningham said. “It’s also about content. But that is protected. Especially in a public forum.”

The issue gained new relevance over the weekend when a former Democratic candidate for Idaho’s House of Representatives was forcibly removed from a Republican-hosted legislative town hall, spurring questions over the legitimacy of the move in light of the political nature of the event.

Teresa Borrenpohl was dragged by private, unmarked security guards out of the town hall hosted by the Kootenai County Republican Central Committee on Saturday after she jeered at people on stage.

Multiple videos show Kootenai County Sheriff Bob Norris, wearing a hat inscribed with the words, “Kootenai County Sheriff,” approached Borrenpohl. He told her to leave, and she declined. He asked her if she wanted “pepper spray” and told her she would be arrested, video shows.

Norris grabbed her arm with both hands and attempted to remove her from the town hall. She told him, “Please don’t touch me.”

After she didn’t comply, Norris gestured to the two unidentified private security guards in plainclothes and pointed at Borrenpohl. The two men wrestled her to the ground as she screamed, “Who are these men?” until she was dragged out of the Coeur d’Alene High School auditorium by her arms.

“I could never have imagined my right to free speech and my right to assemble could be stripped in such a violent way,” Borrenpohl wrote to The Spokesman-Review on Sunday.

Whether First Amendment rights were violated could depend in part on the nature of the town hall; typically, free speech can be restricted to an extent if it’s interfering with official business, like in a city council meeting. But there’s nothing to indicate the KCRCC, the official Republican Party in Kootenai County, had any official government business to attend to that would establish restrictions on Borrenpohl’s speech.

“If this is a regular business meeting, there’s an agenda. And if there is a posted agenda, then generally the public cannot disrupt the operation of the government body,” Coeur d’Alene Police Chief Lee White said. “But an open forum, where people can cheer and jeer – there is an expectation that someone’s right to free speech will not be infringed upon.”

The base of the issue, and what could hinge on the filing of a civil lawsuit, Cunningham said, is whether the meeting was public.

“If we were on the curb on a public street, what this person did would be within her rights to do,” he said. “But if this is a private event, much less so.”

KCRCC Chair Brent Regan contends the meeting was private, though it was marketed openly by a flyer on Facebook with no tickets or invitation required, something that also could change application of the First Amendment. Regan told The Spokesman-Review on Tuesday that the meeting was considered to be private because he paid $500 to rent the space and had to submit insurance for the group to occupy the venue.

But, Coeur d’Alene Public Schools Superintendent Shon Hocker said, the event was perceived to be public, according to an internal email he sent to White.

“Saturday’s event was presented to the school district as a ‘public’ event. As such, we went ahead and rented the facility to them,” Hocker wrote. “… If we had been approached by a political agency to use our facility for a ‘private’ event, it would have been denied.”

Regan told The Spokesman-Review that wasn’t true. He declined via phone call to offer proof of payment or insurance.

The school district doubled down in a memo to media Tuesday saying the request for the event was granted based on the application that stated the event was open to the public and the venue would provide a neutral location where local residents and their elected officials could engage with one another. The school district also said in the memo that they condemn “any action or rhetoric that denies any person their constitutional rights.”

“Any person attending a public event in a public building should feel safe and able to participate without fear of being verbally or physically disrespected, assaulted, or mistreated. As part of the Coeur d’Alene community, the Coeur d’Alene School District is committed to fostering environments that uphold the principles of free speech and civic engagement for all our citizens,” the release states.

Borrenpohl allegedly bit one of the men who dragged her out of the meeting, according to a news release from the Coeur d’Alene Police Department, so she was cited on suspicion of battery based on the “limited information” police knew at the time. After further reviewing evidence, the city prosecutor’s office decided to drop the battery charge “in the interest of justice” and “careful consideration of the law,” Chief Deputy City Attorney Ryan Hunter said. The security firm was identified later as Lear Asset Management, and its license to operate within the city was revoked in the aftermath of the event.

Commentators have noted that Borrenpohl was removed from the event for jeering, while guests who applauded and cheered the speakers were not removed.

“You can restrict behavior, but you cannot restrict content,” White said. “For instance, you can’t allow cheers, but then not allow jeers. It’s got to be all or nothing.”

Law enforcement operates under what Cunningham refers to as more of a “shield” if they are acting in their official capacity. Police and deputies are entitled to certain protections because they are paid to uphold the law. But Norris, Cunningham said, could face a civil battle if he was not acting in his capacity as a law enforcement officer at the event.

Norris will face an independent investigation by an outside law enforcement agency to determine if his conduct aligned with office policy. He was expected to release a statement on the incident Tuesday, but didn’t.

The Coeur d’Alene Police Department continues to investigate the incident to determine whether anyone in the town hall violated criminal law.

“The problem is when the government – meaning the sheriff – gets involved (with free speech),” White said. “That might create an issue.”