From yesterday's decision in Moms for Liberty-Brevard County v. Brevard Public Schools, written by Judge Britt Grant and joined by Judge Barbara Lagoa:
For many parents, school board meetings are the front lines of the most meaningful part of local government—the education of their children. And sometimes speaking at these meetings is the primary way parents interact with their local leaders or communicate with other community members. No one could reasonably argue that this right is unlimited, but neither is the government's authority to restrict it.
A group called Moms for Liberty brought this lawsuit on behalf of members who say their speech was chilled and silenced at Brevard County School Board meetings. According to the Board's presiding officer, their comments were "abusive," "personally directed," "obscene," or some combination of the three. Because the first prohibition was viewpoint based, the second was both unreasonable and vague, and the application of the third was (at a minimum) unreasonable, these policies are unconstitutional….
We agree with the parties that the school board meetings here qualify as limited public forums because they are created "for certain groups or for the discussion of certain topics." The Brevard County School Board meetings are for parents and community members to "express themselves on school matters of community interest." In a limited public forum, the government's restrictions on speech "must not discriminate against speech on the basis of viewpoint," and "must be reasonable in light of the purpose served by the forum." …
[A.] We start with the policy permitting the Board's presiding officer to interrupt speech seen as "abusive." The way that Board Chair Belford interprets and enforces the rule diverges from the common understanding of the word "abusive." … Belford said the policy would prohibit calling people "names that are generally accepted to be unacceptable." That definition is constitutionally problematic because it enabled Belford to shut down speakers whenever she saw their message as offensive.
The record of enforcement supports the contention that this was the operative definition. At one meeting, for example, she interrupted a speaker who criticized the Board's Covid-19 masking policy as a "simple ploy to silence our opposition to this evil LGBTQ agenda." Belford quickly stopped the speaker, who had not yelled, screamed, or otherwise caused a disruption. In her affidavit, Belford explained that she interrupted him because his "characterization of people as 'evil' was abusive."
Belford interrupted another speaker who was criticizing the Board's policies on gender in school bathrooms and school-sponsored sports. According to Belford, the speaker had engaged in abusive "name-calling" by referring to the "liberal left." Yet another speaker was interrupted for repeating insults leveled at her by protestors outside the Board meeting. In stopping her, Belford contended that the speaker had improperly repeated words that were abusive to the speaker herself. No one likes to be called evil, but it is not "abusive" to use that term….
To be sure, a different policy—one prohibiting viewpoint-neutral characteristics of speech, for example, or explicitly and narrowly defining "abusive"—could be constitutional. But here, the ban on "abusive" speech is an undercover prohibition on offensive speech. Because the government "may not burden the speech of others in order to tilt public debate in a preferred direction," the Board's policy on "abusive" speech is facially unconstitutional….
[B.] [T]he [former] policy prohibiting speakers from addressing individual Board members was … [not] reasonable in light of the meetings' purpose….
The reasonableness test … asks in part whether a restriction on speech is enforced in an arbitrary or haphazard way. Asking if the Board's approach to this policy was "haphazard" is like asking if the sky is blue—enforcement was so inconsistent that it is impossible to discern the standard used to assess which speech was permitted at any given meeting.
At some meetings, speakers were allowed to address Board members by name to give them thanks and praise. Offering thanks, however, was not always a shield; one speaker was interrupted when she tried to thank a Board member for his positive impact on her daughter. And at another meeting, Belford cut off a Moms for Liberty member who tried to personally thank a Board member.
On yet another occasion, Belford said nothing when a local high school student addressed one Board member by name while advocating for her theater group to rehearse in the school's indoor facilities. But when a Moms for Liberty member questioned how he, as a parent, could "stand up for District Two" while having to watch the Board member for that district "behind a plastic prison" (referring to a plexiglass barrier in place during the Covid-19 era), Belford and another Board member interrupted him for calling out one of the Board members and informed him that he could not talk to or about his specific representative.
This kind of inconsistent enforcement is exactly what this Court and the Supreme Court have warned against….
Turning to the current policy, we consider whether disallowing speech that is "personally directed" can stand as reasonable…. Belford first described ["personally directed"] as "[a]nything that's directed at a person." But when pressed for more, she suggested that the policy prohibited speech naming an individual, possibly (but not always) coupled with some sort of personal information about that person. One refrain that Belford repeated in her testimony was that the applicability of the policy "would depend on the circumstances."
Belford followed up with various examples. She explained that "if someone is saying to me, 'My friend Susie's son has an IEP for this,' yes, I'm going to stop them because they're sharing someone else's information that shouldn't be public information." But if the speaker just said "'my daughter's friend said that this occurred in school,' and there's no name, that's a different situation." Just mentioning a name, however, might not be enough: "So if you're saying your wife's name and you're just mentioning her name, I don't know that I could consider that personally directed. If you're saying, 'My friend John was raped by someone or my'—you know what I mean?" Respectfully, we do not.
Belford's own inability to define the policy that she was tasked with enforcing speaks volumes. The track record of this policy's enforcement mirrors Belford's muddled definition. Sometimes just mentioning someone's name was enough to provoke interruption, but other times using a name was met with no resistance. At one meeting, for example, speakers advocating for the rehiring of two coaches were interrupted for naming the coaches and were told to refer to them as "these coaches" instead. But at another meeting, multiple speakers were allowed to address and thank the Superintendent by name throughout the meeting.
Even though Belford's definition seemed to require, at least as a baseline, that a speaker use someone's name to violate this policy, the record reflects several times when speakers were interrupted for personally directed speech even though they did not name anyone—at all. Nor did they direct their speech toward anyone in particular. At one meeting, for example, Belford interrupted a speaker who gestured toward one side of the room and said "I keep hearing this side talk about freedom and their choices." This reference, Belford said, violated the policy against personally directed speech. And at yet another meeting, Belford interrupted yet another comment she said was "personally directed": "The sad fact is that all children do not live with accepting and affirming families. Can you imagine the LGBTQ student who may live with families such as those who were here at the last meeting?" Again, no names.
As these examples illustrate, enforcement of this policy was as inconsistent as the definitions offered to support it….
[The policy also] actively obstructs a core purpose of the Board's meetings—educating the Board and the community about community members' concerns. If a parent has a grievance about, say, a math teacher's teaching style, it would be challenging to adequately explain the problem without referring to that math teacher. Or principal. Or coach. And so on. Likewise when a parent wishes to praise a teacher or administrator. Such communications are the heart of a school board's business, and the ill-defined and inconsistently enforced policy barring personally directed speech fundamentally impedes it without any coherent justification.
To be sure, sometimes meetings can get tense—no one enjoys being called out negatively, and some may even dislike public praise. But that is the price of admission under the First Amendment….
[C.] Last, we turn to the policy prohibiting "obscene" speech…. Obscene speech, [Belford] said, includes "things that are not appropriate for young children. Language that is generally accepted to be profane." Profanity, in turn, includes "things that are sexually explicit" and "words that are typically considered to be inappropriate for use in school." Moms for Liberty challenges this part of the policy not on its face, but as applied—specifically as applied to reading a book from an elementary school library.
Again, it seems clear that at least some iterations of an obscenity policy would be constitutional—obscenity is one of the few unprotected categories of speech under the First Amendment. But that constitutional standard is exceptionally narrow: material is obscene when (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest"; (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." So if the Board were to use this part of the policy to prohibit true obscenity, that action would survive under even the strictest review. We do not, however, decide whether or how the school board could properly prohibit other profane or explicit speech at school board meetings, even if it does not rise to the level of true obscenity—that question is not before us.
Instead, the Board used its obscenity policy to bar protected speech, and it did so in a way that impeded the purpose of a school board meeting. During the incident Moms for Liberty cites, a member shared her concern that her child's elementary school library contained inappropriate books. She began reading one, which detailed an in-school sexual encounter:
I tiptoed toward the door, peering through the window at the boy's pants around his ankles squeezed between April's straddled legs as she lay on the teacher's desk. I swung the door open letting a soft light from the hallway shine a spotlight on them. 'Shit!' he muttered.
Belford quickly interrupted the speaker when she got to the word "shit."
That word, though not polite, is also not obscene. Nor is the book's other content, no matter how objectionable it may be as early childhood reading material. Moreover, the content of books in school libraries is a matter of serious community interest. It would be difficult, if not impossible, for speakers to adequately air their concerns about a particular book without informing both the Board and the community about what that book says. Describing the content of a book is not as potent as reading its words—nor is it as informative. And it is remarkable for the Board to suggest that this speech can be prohibited in a school board meeting because it is inappropriate for children when it came directly from a book that is available to children in their elementary school library.
Because this prohibition on obscenity is not about obscenity, and frustrates the purpose of the forum, it is an unreasonable policy, at least as it applies to reading portions of books from school libraries. It is therefore unconstitutional as applied here.
Judge Charles Wilson joined the majority as to everything except "the present prohibition on personally directed speech":
Presently, the Policy allows speakers to "address comments to the Board as a whole, the presiding officer, or to an individual board member." I read this text to suggest that these are the only people speakers can address, not the only people speakers may mention. This appears to me to be both viewpoint neutral and reasonable given the purposes of a school board meeting.
The new Policy bans speakers from directing comments at particular people. But, for example, a parent addressing the entire board may comment about particular teachers or coaches. In addition to remaining viewpoint neutral, I would find this restriction reasonable given the feedback purpose of a school board meeting. We acknowledge a municipal body's interest in conducting orderly meetings. Footage from the meetings indicates the most disruptive comments being those that seemed directed at members of the audience, such as when Jenkins discussed a person who lurked around her home being present in the board room or when people in the crowd began yelling at Jenkins during her same report.
We do not require a limited public forum to have the only reasonable or even the most reasonable restriction on speech, but only a reasonable restriction, given the purpose of the forum. As written, the new restriction on personally directed speech is a viewpoint neutral restriction reasonable in light of the forum's purpose….
Judge Wilson also elaborated on some other factual and legal details; you can see all that in the full opinion.
Alan Gura, Ryan Morrison, and Brett Robert Nolan (Institute for Free Speech) and David Randel Osborne (Goldstein Law Partners, LLC) represent plaintiffs.
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