Sixth Circuit Says School Board Can't Boot People From Meetings Just Because It Doesn't Like What They're Saying

from the seems-like-an-obvious-conclusion-but-here-we-are dept

Just because government officials may not like the tone of the criticism they're receiving doesn't mean they can use their government power to mandate civility. That's the determination of the Sixth Circuit Appeals Court, which has struck down part of an Ohio school board's rules of (public) engagement.

Following a school shooting in 2016, the Madison (OH) Local School District came up with a preventative plan -- one that involved allowing school staff to carry concealed weapons. This didn't play well with some parents. It also didn't play well with some of the district's students, who staged a walkout to protest gun violence. Following the discipline of those students, some residents decided to attend a school board meeting to express their feelings about the rule change and the punishment of students for their expressive speech.

Madison school district meetings are governed by the following "Public Participation Policy:"

Only Madison residents may participate, and they must limit their speaking time to three minutes. Participants must address the presiding officer, not Board members individually. The Policy authorizes the presiding officer to:

1. prohibit public comments that are frivolous, repetitive, and/or harassing;

2. interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]

4. request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.

Plaintiff Billy Ison attended three meetings from March to May 2018. His May appearance resulted in the Board's actions that prompted this lawsuit. Here's how that evening went, according to the Sixth Circuit's opinion [PDF]:

A video of Billy Ison’s remarks there shows him turning to address the room and reading from a prepared speech, accusing the Board of “threaten[ing]” the school to punish the student protestors. He calls the Board’s justification offered at the prior meeting for punishing “a smokescreen intended to conceal their true motivation . . . to suppress all opposition to pro-gun views” and “push its pro-gun agenda.” And it depicts him accusing the Board of “taking a very strong position on guns” when it decided to arm staff.

The Board interrupted Billy twice during his remarks. First, [Board President David] French asked Billy not to use the word “threatening.” Second, after Billy accused the Board of concealing their “true motivation” for punishing students, another Board member asked him to stop “putting words in [the Board’s] mouth” and saying things “that are not facts.” French then asked Billy to stop and warned that if he continued, security would escort him out. Billy continued, finishing his speech while a security officer escorted him calmly from the room. In total, he spoke just under three minutes. As French later recalled the incident, Billy “was being basically unruly, not following the rules, being hostile in his demeanor.” He let Billy speak “until other people were starting to object and getting offen[d]ed by it.”

Ison sued, claiming the restrictions on speech were unconstitutional, enacted by the Board in hopes of stifling criticism. He argued the Supreme Court's recent decision involving the registration of disparaging trademarks prevents the government from targeting speech considered "abusive, personally directed, or antagonistic." The Appeals Court agrees with Ison's assertions.

In Matal, the Court struck down the Lanham Act’s prohibition on federal registration of trademarks that “‘disparage . . . or bring . . . into contemp[t] or disrepute’ any ‘persons, living or dead.’” 137 S. Ct. at 1751 (alterations in original) (quoting 15 U.S.C. § 1052(a)). Though split between two plurality opinions, all Justices agreed that the “anti-disparagement” clause discriminated based on viewpoint because “[g]iving offense is a viewpoint.” Id. at 1763 (Alito, J., opinion). The Iancu Court struck down another Lanham Act restriction on “immoral or scandalous” marks, finding it “permit[ted] registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts.” 139 S. Ct. at 2299. It reasoned that the act impermissibly “distinguishe[d] between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation.” Id. at 2300. In short, these cases stand for the proposition that the government may not censor speech merely because it is “offensive to some.”

That this was an attempt to limit criticism of the Board and its members was made even more obvious by the testimony of the Board Director, who testified that "giving offense" was sufficient enough to move the Board to prevent the person from speaking further. Given this testimony and the undisputed video recording of Ison's comments and ejection from the meeting, the Appeals Court says the Board's participation policy -- at least in terms of its restrictions on certain forms of speech -- is unconstitutional.

The restrictions on “antagonistic,” “abusive” and “personally directed” speech prohibit speech because it opposes, or offends, the Board or members of the public, in violation of the First Amendment.

The court notes that this is not a blessing for ad hominem attacks in limited public forums. Attacking ideas and issues is one thing. Personally attacking individuals is quite another. The court says restrictions on this form of speech would likely still be permissible in many cases.

But tossing people from meetings or otherwise silencing them for being critical of government officials and their decisions definitely isn't permissible. And the Board will likely end up having to rewrite this to be a whole lot less infringe-y and whole lot more specific by the time the lower court is done handling the administrative duties of deciding on a proper remedy.

Filed Under: 1st amendment, 6th circuit, free speech, school board

School Board Demands Journalists Be Punished For Reporting On The School Board's Redaction Failure

from the not-the-way-that-works-(also-not-the-way-redaction-works) dept

A redaction failure by a public entity has led to a request for contempt charges to be brought against a Florida newspaper and two of its reporters. The Sun Sentinel obtained a copy of the Broward County School Board's report on the Parkland shooter after a successful public records request lawsuit. The report was heavily redacted… or at least, it was supposed to be. But the school board screwed this task up.

After a judge's order, the school district publicly released the report Friday with nearly two-thirds of its content blacked out to protect 19-year-old Nikolas Cruz's privacy rights. But the district used a method that failed: Anyone could copy and paste the blacked-out report into a Word document to make all the text visible.

Sun Sentinel reporters Brittany Wallman and Paula McMahon, acting on a Facebook tip from a reader at 7:30 p.m., discovered on deadline the concealed text could be viewed. The reporters quickly rewrote the story reflecting the entire report, providing the first detailed account about the school shooter's years in the school system, what the district knew about him and what mistakes were made.

The report [PDF] has been uploaded by the Sun Sentinel with the redaction performed correctly. But the faulty version was used to craft a long article about the shooter using details the court had determined could be withheld.

A petition [PDF] has been filed by the school board in an effort to shove this genie back into the bottle. The motion alleges the Sun Sentinel agreed to the redactions, which were put in place to conform with federal and state privacy laws covering education and medical records. Some of what was redacted detailed errors made by the school system when handling the shooter's discipline and educational options.

What the school board is seeking is both impossible and preposterous. The report has already been read in full and an article produced showing what was redacted. Copies of the report containing the faulty redaction are likely still in circulation. The contempt order might cause the Sun Sentinel some pain, but the damage has already been done.

That's the impossible side. The preposterous side is this: the Sun Sentinel published information it obtained lawfully. The report was delivered by the school board in accordance with the court's order. If the school board screwed up the redaction (and it did!), it has no right to complain people accessed the content it meant to keep hidden. Even if the Sun Sentinel agreed to the redactions, that doesn't mean it's supposed to just sit there and pretend it can't see the text the school board failed to fully redact.

Whatever damage has been done was inflicted by the school board for failing to properly redact the report it was ordered to hand over to the Sun Sentinel as the result of public records request lawsuit. The recipient has no obligation to only report on unredacted portions of the report if it has access to the entirety of the document due to human error. The judge may not be happy the Sun Sentinel did this, but I can't see how the court's going to find this is the reporters' fault, rather than the school board's.

Filed Under: broward county, free speech, journalism, redactions, school board
Companies: sun sentinel