In a battle between free speech and public decorum, the United States Court of Appeals for the 11th Circuit just handed down a ruling in favor of a parental rights group and its members. They had argued that their First Amendment rights were violated during school board meetings in Brevard County, Florida.
The incidents at the heart of the lawsuit occurred throughout 2021, a period marked by heightened tensions over school policies, including COVID-19 measures and LGBTQ+ issues. Plaintiffs recounted instances where their comments were interrupted or they were removed from meetings for allegedly violating the board's speech policies. Let’s look at these incidents before we turn to the litigation.
Calling People Names
Thomas Jefferson, a frequent speaker at Brevard County School Board meetings, claims that he was censored in a March 2021 meeting while criticizing the Board’s COVID-19 mask policy. Jefferson referred to the masking policy as a “simple ploy to silence our opposition to this evil LGBTQ agenda” but did not yell, scream, or otherwise cause a disruption.
Misty Haggard-Belford, the Chair of the Brevard County School Board, interrupted Jefferson to criticize his choice of words. When Jefferson asked if there was a problem with the word “evil,” Haggard-Belford responded, “Yes, sir. You are calling a group of people evil and the policy evil.”
Jefferson was then allowed to continue expressing his views without interruption, during which he expressed opposing to “any and all LGBTQ policy changes” and saying, “I want to make it perfectly clear here and now we hate the sin not the sinner. . . .We are the Christians of Brevard County and all over the world and will not sit silent and allow you to put your evil, sinful policies on our children. After he was done speaking, a board member stated: “I just want to throw this out there. I am concerned that we’re allowing comments that our students can hear and are probably watching at home that are calling them sinners.”
Criticizing Democrats and Liberals
Joseph Cholewa was ejected from a meeting by Haggard-Belford after criticizing the Board’s mask mandate and comparing it to various policies allegedly endorsed by the Democratic Party. He was interrupted multiple times, first for criticizing the notion that babies are born racist, and then for criticizing parents who help their children transition their gender. Cholewa was ultimately expelled after stating, “This is America. I know you don’t like freedom. I know you don’t like liberty. I know you don’t like the Constitution. Guess what? I’m going to keep talking.”
In another board meeting where the Board was expressing its support for transgender children, another speaker, Lois Lacoste, was interrupted for using the term "liberal left.” She had said, "But the liberal left, who seem to rely so heavily on 'science,'" but was allowed to continue. She concluded her remarks by emphasizing that the issue is about "the end of decency in America" and warned the board members that "God Almighty is watching you."
Unclean Language
Another incident involved Michelle Beavers addressing the Board by initially discussing mask policies. She then abruptly pivoted to the topic of books available in school libraries, without preface, and started reading an excerpt she claimed was from a book found in an elementary school library.
The excerpt she read described a sexual encounter in explicit terms: "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." At this point, Haggard-Belford interrupted Beavers, stating, "Ma’am, I need for you to keep your language clean."
Addressing Individuals
The plaintiffs also claimed that they were criticized for directing comments to individual Board members.
For example, during the meeting when Cholewa criticized Defendants’ COVID mask policies, he directed his comments to Matt Susin, the individual who represents his school district. Susin interrupted him, saying, “Don’t call out one of our school board members.” Cholewa asked, “So I can’t talk about my representative from my district?” Haggard-Belford replied, “No, you cannot.” Another plaintiff was interrupted by Haggard-Belford when she tried to thank Susin personally during her comments.
Another speaker criticized Board member Jennifer Jenkins. Haggard-Belford interrupted him when mentioning Jenkins by name and was instructed to direct comments to the Board chair instead. At another meeting, a student also criticized Jenkins, saying, “Jennifer Jenkins personally showed up to my school.” She was interrupted by the presiding officer, who interjected: “So, hold on just one second. Everything needs to be directed to me and not calling out any individual board members for me if you would. Okay? Thank you so much.”
Preferential Treatment
Plaintiffs also claim that during one meeting, certain members that aligned with an ideology or agenda were given preferential access. They claim that pro-LGBTQ activists were escorted into the meeting room ahead of other Brevard residents who had arrived earlier and were waiting to enter.
This preferential treatment allegedly resulted in the community members with disfavored views being excluded from the meeting. Law enforcement officials stationed at the meeting room doors reportedly prevented these individuals from attending while allowing activists with viewpoints favorable to the Board’s policies to enter.
Moms for Liberty
The speakers who were so affected seemed to have one important thing in common: a relatively conservative ideology. As such, when they joined forces to take the school board to court, they had the support of Moms for Liberty (M4L), a conservative nonprofit organization that advocates for parental rights in education.
M4L’s mission is to empower parents to have a voice in their children's education and promote school curricula transparency. The group's members are ideologically diverse but generally lean towards conservative values, emphasizing limited government intervention and traditional family structures. It engages in lawsuits related to school policies, curriculum content, and mask mandates, often challenging what they perceive as overreach by educational institutions or government authorities in matters concerning children's education and welfare.
District Court Rules for Board
M4L brought lawsuit in a Florida federal court on behalf of its members, several of whom were affected by the Board’s alleged censorship at meetings. They challenged the constitutionality of the speech policies enforced by the Board, which they argued restricted their ability to speak freely at public meetings. They argued that the prohibitions on "abusive," "personally directed," and "obscene" speech violated the First Amendment.
M4L also argued that the alleged practice of granting preferential access based on viewpoint violates their First Amendment rights. The Board disputed these allegations, claiming that the individuals given preferred access were students who were escorted in separately for safety reasons. This was thus a factual dispute, but the district court did not hold an evidentiary hearing to resolve it. Instead, the court went with the Board’s account and dismissed the Plaintiffs' claims as a "passing assertion."
The district court granted summary judgment in favor of the Board. It concluded that Moms for Liberty lacked standing as they could not show an actual or imminent injury. Despite finding no standing, the district court also ruled that the Board’s policies and enforcement practices were constitutional. The court held that the policies did not chill protected speech because the members who were interrupted continued to speak, so the interruptions were inconsequential.
Appeals Court Reverses
When Moms for Liberty appealed to the 11th Circuit, the court went the other way, ruling that the Board's policies on public comments during school board meetings were unconstitutional in violation of the First Amendment.
The appellate judges pointed out that while the government has broad power to restrict speech in limited public forums, such restrictions must be reasonable, viewpoint-neutral, and clear. But the Board's policies did not meet these standards. The "abusive" speech policy was deemed a viewpoint-based restriction because it allowed the Board to silence speech it found offensive, which is impermissible.
The court found that the prohibition on "personally directed" speech was inconsistently enforced and unreasonable. The policies, the court reasoned, failed to serve the Board's stated purposes. Rather, they impeded the core function of the meetings. Lastly, the court ruled that the application of the "obscene" speech policy was unreasonable because it barred protected speech, particularly when it involved reading from books available in school libraries. The circuit court sent the case back to proceed at trial.
Impact of the Ruling
Alan Gura, representing Moms for Liberty, praised the decision for reinforcing Americans' right to express their views at government meetings. Because many school districts in Florida (and other states) have similar policies, the ruling can be expected to have a broad impact throughout a good chunk of the country.
Gura stated that the ruling could set a precedent not just for the school, but also in the context of government meetings. "This provides a strong measure of protection for all Americans to express their views to their elected officials. We cannot have government officials deciding which views are acceptable and which are not. It's a free country, and you can't have democracy without free speech. We are allowed to express ourselves.”
Others are concerned that the ruling will have negative impacts in two possible directions. It can foreseeably cause more disruption by allowing for incendiary comments, in which case, school boards would have a difficult time maintaining order at meetings.
Alternatively, the decision might encourage school boards to allow less input altogether from the public, which would also be a loss for democracy. We can only hope that school Boards will find a happy medium to balance civility with the freedom of expression.
Related Resources:
- Is Charging Parents the New Strategy for Combating School Violence? (FindLaw's Courtside)
- Parents Have a First Amendment Right to Be Obnoxious at School Games (FindLaw's Federal Courts)
- Free Speech in School: Student Rights (FindLaw's Learn About the Law)
