Another Court Disagrees With The Brevard County School System And Government Demands That People Be “Nice.”

We have been covering the Brevard County School Board’s position on speech at public meetings since Board Chair Misty Belford stopped a speaker for using the term “liberal left,” during public comments at a Board meeting. At that same meeting, Belford stopped another speaker who claimed that she was called a “bitch” by some people. Bedford said she wouldn’t allow the term during the meeting.

We wrote an extensive post on how Belford was wrong and the Board’s policies where contrary to the First Amendment and established Supreme Court decisions.

We were somewhat surprised when we were forwarded a response from Board member Kayte Campbell which contained a response from the general counsel for the School Board.

Not only was the response a mess in that the Counsel tried to argue that speech that offended listeners was the same as actions (such as fighting) he cited a case from the 4th Circuit Court of Appeals that he characterized as saying one thing, but what was really said was contrary to his opinion and the Board policy.

The General Counsel noted that the State of Florida is covered by the 11th Circuit Court of Appeals and so the 4th Circuit case doesn’t directly apply, but can be used a indicator of the law and court decisions.

We can play “out of Circuit Court Cases” too.

The 6th Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio and Tennessee) recently issued an opinion in the case of Ison v. Madison Local School District Board of Education.

The case deals with policies on public speech that are similar to the School Board policies here in Brevard County.

The Madison School Board had polices regarding the speech and conduct of speakers that include:

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. (emphasis ours)

Here in Brevard County, prior to public comments on March 9, 2021, Chairperson Misty Bedford made these remarks:

Please listen carefully to the rules of decorum as they will be heavily enforced this evening. Always remember that reasonable decorum is expected at all times. Your statement should be directed at the board chairman. As chairman, I may interrupt, warn or terminate a participant’s statement when time is up if it is personally directed, abusive, obscene or irrelevant.

Should an individual not observe proper etiquette, I may request the individual leave the meeting. Let’s all encourage an environment that is appropriate for our children who may be present or watching from home. (emphasis ours)

The two policies are in fact, remarkably similar.

In May, 2018, Billy Ison and family members stood up during public comment to voice his displeasure at the Madison School Board’s passage of a policy to allow allowing teachers to be armed in schools after a 2016 incident where a student fired a weapon and injured four students.

From the Court decision:

The Isons, having preregistered, each expressed their disdain for the new resolution and the punishment of student protestors. Board President David French responded to their criticism, emphasizing the Board’s effort to create a safe learning environment for all students and their commitment to remaining neutral on political issues.

The Isons spoke again at the next meeting (May 2018). 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, 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.”

Billy Ison’s speech was calm and measured and his actions did not cause a disruption at the meeting, yet he, like the speakers at the Brevard County School Board meeting, was interrupted for his speech being “offensive.”

We know the 6th Circuit’s analysis of this case is long. Here’s what the Court said in regard to the Ison’s claim that their First Amendment rights were violated:

First, we consider the Board Policy’s restrictions on “abusive,” “personally directed,” and “antagonist” statements. Plaintiffs urge that these restrictions, as written, violate the First Amendment by discriminating on viewpoint and that the Board unconstitutionally applied the restrictions to silence Billy.

For the facial challenge, we look to the Policy’s text and determine whether it unconstitutionally burdens speech. See Speet v. Schuette, 726 F.3d 867, 871–73 (6th Cir. 2013). Though the Policy contains no definitions, President French testified that the Board interprets “abusive” to mean “hostile to one’s feelings or towards [sic] in your manner of speech”; “antagonistic” to mean “to antagonize with hostility toward oneself or one’s person[;] . . . being hostile to people”; and “personally directed” to mean “either harassing [or] abusive statements directed at someone individually.” (R. 31-3 at PageID #: 471.) This matches common dictionary definitions. See Abusive, Merriam-Webster, (“harsh and insulting”); Antagonistic, Merriam-Webster, (“showing dislike or opposition”); see also Iancu v. Brunetti, 139 S. Ct. 2294, 2299–300 (2019) (utilizing Patent and Trademark Office interpretation and dictionary definition to determine terms’ meanings for First Amendment challenge). Plaintiffs argue that two recent Supreme Court cases, Matal v. Tam, 137 S. Ct. 1744 (2017) and Iancu, 139 S. Ct. 2294, clarify that these regulations are viewpoint based and thus unconstitutional. We agree.

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.” Matal, 137 S. Ct. at 1763 (quoting Street v. New York, 394 U.S. 576, 592 (1969)).

Our cases clarify the impact of Matal and Iancu. In Youkhanna, we surmised, albeit in dicta, that, in light of Matal, a rule against “attacks on people or institutions” during the public comment portion of a city council meeting “could be construed as viewpoint discrimination.” 934 F.3d at 518–20.1 And then in American Freedom Defense Initiative, we went further and relied on Matal and Iancu to strike down a restriction prohibiting buses from running ads “likely to hold up to scorn or ridicule any person or group of persons.” 978 F.3d at 500. We found that the restriction “necessarily discriminates between viewpoints” because “[f]or any group, the restriction facially ‘distinguishes between two opposed sets of ideas’: those that promote the group and those that disparage it.” Id. (quoting Iancu, 139 S. Ct. at 2300). So too here.

The antagonistic restriction, by definition, prohibits speech opposing the Board. See Antagonistic, Merriam-Webster (“showing dislike or opposition”). And abusive prohibits “insulting” language, see Abusive, Merriam-Webster (“harsh and insulting”), with “personally directed,” meaning simply abusive speech directed at one person, per the Board’s interpretation. These terms plainly fit in the “broad” scope of impermissible viewpoint discrimination because, like in Matal, Iancu, and American Freedom Defense Initiative, they prohibit speech purely because it disparages or offends. See Matal, 137 S. Ct. at 1763. Indeed, President French testified that giving offense sufficed, under the Policy, to prevent someone from speaking. (See R. 31-3 at PageID #: 493 (“If [the speech is] perceived to be particularly offensive or abusive, then yes, I would stop [the speaker.]”)).

The Board invokes Lowery v. Jefferson County Board of Education, 586 F.3d 427 (6th Cir. 2009), a pre-Matal and Iancu case, to resist this conclusion. In Lowery, our court considered a challenge to a school board public participation policy restricting “frivolous, repetitive, [and] harassing” statements. Id. at 433. We rejected the challenge, finding those restrictions “‘justified without reference to the content’ of the speech” and therefore content-neutral. Id. (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Though we elaborated little on the finding of content-neutrality for each of these terms when discussing the facial challenge, we reasoned later in the opinion that “harassment” often overlaps with “repetitiveness,” thereby avoiding impermissible viewpoint discrimination. See id. at 435. Indeed, we cautioned that interpreting “harassing” to “exclude speech merely because it criticizes school officials,” would constitute viewpoint discrimination. Id. This sets Lowery apart from the case here.2 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. To hold otherwise and expand Lowery as the Board suggests would run afoul of Matal and Iancu.

This likewise settles Plaintiffs’ as-applied challenge because President French testified that he stopped Billy’s speech when he started offending people. (R. 31-3 at PageID #: 481 (“And then when it came to a point where . . . he was personally attacking and people were getting offended . . . I stopped him.”)) Video evidence confirms that another Board member’s taking offense to Billy’s comments prompted his removal, after French interrupted him initially for accusing the Board of “threatening” school administration. French later clarified that he stopped Billy because he found his speech “hostile,” “personally directed,” and “abus[ive.]” The video contradicts much of French’s testimony. Billy spoke calmly, used measured tones, and refrained from personal attacks or vitriol, focusing instead on his stringent opposition to theBoard’s policy and his belief that the Board was not being honest about its motives. While not directly relevant to our decision as to Plaintiffs’ as-applied challenge, the application to Billy is useful evidence of the Board’s interpretation of the regulations. Having already found the “abusive” and “personally directed” restrictions facially unconstitutional, their application to Billy’s comments also constitutes impermissible viewpoint discrimination. Accordingly, the Policy’s restrictions on abusive, personally directed, and antagonistic speech, facially and as-applied, violate the First Amendment. (emphasis ours.)

As we said, we are well aware of the length of the passage we are quoting here, but we want to make sure people don’t think we are pulling things out of our collective posteriors in order to say something that is not true. We’ll leave that up to other government lawyers.

In case you just want the Cliff Notes version of the decision, we’ll repeat the main point:

Accordingly, the Policy’s restrictions on abusive, personally directed, and antagonistic speech, facially and as-applied, violate the First Amendment.

The Fourth Circuit, the Eleventh Circuit and the Supreme Court disagrees with the School Board, their policies and the opinions of their general council. You can now add another Circuit Court to that list as the 6th Circuit has chimed in and said the very restrictions the Brevard School Board has in place are against the First Amendment.

We’d like to think that the School Board can learn even during summer break, but we aren’t holding our breath.

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