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FAIL: School Board Responds To Claim Of Free Speech Violation.

One of our readers sent a copy / link to at least one of our posts (here and here) on the Brevard County School Board not understanding the law, and suppressing the rights of citizens. The reader sent the links / posts to District 5 Commissioner Kayte Campbell, who, after a few weeks, responded to our reader.

Campbell says in her response that other things had taken priority and she was late getting back to the reader. We understand things getting in the way as we have had issues here at Raised on Hoecakes recently. However, Campbell asks the reader to forward her response to us which the reader did.

We are going to keep the reader’s name out of this for a variety of reasons. They are not a public figure for the purposes of this discussion, and we won’t drag them into it.

Here is Campbell’s response:

Hey [REDACTED]! I hope you didn’t think I forgot you. Our [General Counsel] got back to me a few weeks ago, but my list got long and this fell to the bottom. I apologize. Here is what you were asking for:

“In this case the parties agree that the Commission’s public meeting was a ‘limited public forum,’ and we concur in that assessment. Accordingly, HN3 a government entity such as the Commission is justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business. But any restriction must not discriminate on the basis of a speaker’s viewpoint. See Good News Club, 533 U.S. at 106-07; Collinson v. Gott, 895 F.2d 994, 1000 (4th Cir. 1990) [**17] (Phillips, J., concurring).”

Steinburg v. Chesterfield County Planning Comm’n, 527 F.3d 377, 385, 2008 U.S. App. LEXIS 11417, *16-17

Steinburg is a 4th Circuit Court of Appeals case, but they cite the US Supreme Court’s decision in Good News Club for the holding, along with the Collinson case.

Additionally, the 11th Circuit (our circuit) has held:

“”The freedom of expression protected by the First Amendment is not inviolate; the Supreme Court has established that the First Amendment does not guarantee persons the right to communicate their views ‘at all times or in any manner [**4] that may be desired.'” Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989) (quoting Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981)).”

Rowe v. City of Cocoa, 358 F.3d 800, 802, 2004 U.S. App. LEXIS 1220, *3-4, 17 Fla. L. Weekly Fed. C 200

Moreover, the School Board’s public comment was opened up by the Florida Statute you cited (F.S. 286.0114 (2)) to be a limited public forum for addressing matters before the board (agenda items) with the express authority to establish rules to maintain decorum. As long as those rules are equally enforced, I do not believe that there would be a speech violation. The Board could restrict public comment at Board meetings to only items on the agenda, eliminating all other comments. As a limited public forum, such a restriction would be constitutional.

That should answer your question regarding our public comment policy as well as that of Palm Bay or other bodies. Feel free to share this info with the author of the Hoecakes blog.

Kayte Campbell

We want to address what the School Board’s Counsel has written.

Before we do, we want to remind people that Chairperson Misty Belford had cut people off during their comments claiming they were a violation of School Board Rules. One person spoke and declared a policy which was being discussed was ““For the liberal left who relies so much on science…..” The claim is general and not made toward any individual on the dais or anywhere else. Interestingly, later in the discussion, several Board members used the term “bigots” to describe those against the policy. Apparently the School Board feels that they can call people bigots, but people cannot say “liberal left.”

Another speaker said that she was called a “bitch” outside by protestors. Notice that speaker was not claiming that Board members, nor any specific person was a “bitch,” but rather relating an incident that happened to her.

Belford claimed that the terms used by both speakers violated the rules of the meeting.

We know that Belford’s claim is not supported by law, no matter what the General Counsel for the School Board tries to say.


First, the General Counsel cites the case of Steinburg v. Chesterfield County Planning Commission from the Fourth Circuit. (Florida is in the Eleventh Circuit, so while the Fourth Circuit’s ruling doesn’t directly apply to Florida, we are perfectly happy to use it.

The cited passage uses the term “limited public forum,” which is defined as:

a public forum created by the government voluntarily for expressive activity that may be restricted as to subject matter or class of speaker called.

We agree that the Brevard County School Board meetings are limited public forums. As such, speakers can be restricted to topics (such as an agenda item) or who may speak on an agenda item. The latter plays out if the School Board had an agenda item which resolution would apply only to teachers. They could restrict comments to those of teachers only.

However, in the Brevard County School Board meeting where people were censored by the Chairperson, the agenda item was “Public Comments” which means no specific item was being discussed, and the public in general was invited to speak which means the Board had not restricted who could speak.

In the case of Steinburg v. Chesterfield County Planning Commission, the speaker went off the rails and started talking about a subject that was not the agenda topic. In other words, the Commission’s agenda item was on “Topic A,” but the speaker wanted to talk about “Topic Z.” In addition, speaker Steinberg had engaged in a shouting match with the Chairperson and other Commission members during his comments.

In many ways, the General Counsel for the School Board is comparing apples to pomegranates.

(EDITOR’S NOTE: Interestingly, the legal counsel for the Palm Bay Planning and Zoning Board once told us that their meetings were not limited public forums. When challenged, he declined to answer as to what type of forum the meetings, which are open to the public and at which the public is invited to speak, is.)

When the General Counsel cites Steinberg, he wants people to focus on the statement that “…Commission is justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.”

We agree that people should be civil in public meetings. There is a caveat there though and that is you don’t have to be “civil” in a public meeting until the incivility affects the ability to carry out purpose of the meeting. In Steinberg, the focus of the meeting became the shouting match and name calling that prevented the meeting from moving forward.

Compare that to the School Board meeting speaker whose comment of “liberal left” brought no reaction from anyone. (Neither did the young lady’s comment that she was called a “bitch” by others outside of the meeting.)

Communications with several School Board members have resulted in the members saying they don’t like the language that is sometimes used.

We don’t like certain language either, but we are smart enough to know that “liking” or “not liking” speech has nothing to do with the ability of people to exercise their First Amendment rights.

The School Board Attorney also wrote:

“”The freedom of expression protected by the First Amendment is not inviolate; the Supreme Court has established that the First Amendment does not guarantee persons the right to communicate their views ‘at all times or in any manner [**4] that may be desired.'” Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989) (quoting Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981)).”

Rowe v. City of Cocoa, 358 F.3d 800, 802, 2004 U.S. App. LEXIS 1220, *3-4, 17 Fla. L. Weekly Fed. C 200

Not surprisingly, we agree with this statement and citation.

However, where the School Board goes off the rails is that people do have the right to express their views in an appropriate time during a limited public forum. In this case, the School Board had designated the time for “Open Public Comments,” and no one was speaking out of that time frame when they were stopped by the Chair.

“Manner” seems to be what the School Board and Kayte Campbell are hanging their hat on. However, “manner” is not what is said, but the mode of expression.

In other words, in limited public forums, Boards can say “you can’t use a bullhorn” to speak in a meeting. “Manner” restrictions are fine.

Content restrictions are not.

The whole argument and cases cited by the School Board’s General Counsel are not relevant to whether the Board can restrict speech it does not like.

They cannot.

Finally, we want people to take note of this…..

As long as those rules are equally enforced, I do not believe that there would be a speech violation. The Board could restrict public comment at Board meetings to only items on the agenda, eliminating all other comments. As a limited public forum, such a restriction would be constitutional.

First, let’s be clear – the rules are not equally enforced. People are allowed to express opinions about the School Board members, school employees, etc., as long as the Chairperson thinks the comments are positive. Once someone says something negative, the Chair can, will, and does shut people down.

That is the definition of a content based restriction on speech. All of the cases cited by the General Counsel say the same thing; restrictions based on content are unConstitutional.

Secondly, look at what Campbell says about public comments on non-agenda items in general.

There is a threat there. There is an obnoxious hubris of “we don’t have to listen to you. We can just ban comments that are not on topics that we want to discuss.”

It is almost as if Campbell is saying “if people don’t want to follow our unConstitutional rules, we’ll take our ball and our microphone and go home.”

That’s a dangerous sentiment from someone serving as an elected official.

Sitting on the dais means that elected officials are to protect the rights of the people, and not demand that the people kiss their rings.



One Response to “FAIL: School Board Responds To Claim Of Free Speech Violation.”

  1. Truthful says:

    Ah, so many reasons to remove one’s children from the public school system.

  2. […] few days ago we talked about the massive “fail” on the part of the Brevard School Board and their General Council in defending the unConstitutional […]

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