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From Florida to Maine, school boards and city councils silence critics in the name of ‘decorum’

In new friend-of-the-court filing, FIRE and Manhattan Institute ask Eleventh Circuit to protect ordinary Americans’ right to comment at public meetings.  
Woman holds a sign reading "freedom of speech" during a Brevard County School Board meeting

Tim Short / Florida Today / USA TODAY NETWORK

Woman holds a sign reading "freedom of speech" during the Oct. 26, 2022 meeting of the Brevard County School Board in Viera, Florida, which attracted groups with opposing views of the district's COVID-19 mask mandate.

FIRE has observed a troubling trend sweeping the nation in recent years, particularly since the onset of the COVID-19 pandemic: School boards and city councils are increasingly shutting down criticism from their constituents at public hearings, often interrupting them, forcing them off the podium, and even having them arrested. When elected officials shut down speech, they often cite so-called “decorum” policies that vaguely ban “abusive,” “obscene,” or “personally directed” comments during public comment periods. 

That’s exactly what the Brevard County School Board in Florida did when various members of a local chapter of Moms for Liberty, a parental advocacy group, tried to criticize school policies and decisions. The school board repeatedly interrupted Moms for Liberty members, ordered them to stop speaking on entire topics, and even removed them from the podium for criticizing the board. The board cited decorum policies to prevent the group’s members from speaking on topics ranging from COVID-19 masking policies to school library books to the board’s response to a case of indecent exposure on one of its campuses. 

The group sued to block the school board from continuing to violate its members’ First Amendment rights, but the trial court didn’t agree and dismissed the case. Moms for Liberty has now appealed to the U.S. Court of Appeals for the Eleventh Circuit. 

FIRE and the Manhattan Institute filed an amicus curiae — “friend of the court” — brief in support of Moms for Liberty, asking the Eleventh Circuit to recognize that the First Amendment protects the right to criticize government officials and that “decorum” policies are no exception to this ironclad rule. 

As described in FIRE’s brief, the definition of “abusive” was entirely up to the school board’s discretion, and one board member testified that the term was so broad that she didn’t “know that there even is an exhaustive definition of abusive.” 

FIRE recognizes that some Moms for Liberty members across the country have called for removing books from school libraries. To be clear, FIRE opposes efforts to ban books from school libraries because of hostility to certain views or ideas. We agree with Supreme Court Justice Harry Blackmun’s concurring opinion in 1982’s Board of Education, Island Trees Union Free School District No. 26 v. Pico: In exercising control over school libraries, school authorities “may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved.” FIRE likewise opposes efforts to shut down public libraries that refuse to ban books, and we have weighed in against laws, most recently in Virginia, that enable book banning. As FIRE Legal Director Will Creeley has written: “Book bans are antithetical to the First Amendment and the pluralist values it protects.” 

But FIRE also does not support shutting down, interrupting, or forcibly removing members of the public from the podium at public school board meetings for criticizing the school board, regardless of the views at issue. If school board officials and city council members can’t take the heat, they should get out of the kitchen. The First Amendment demands no less.

The problem: Elected officials wield vague unconstitutional policies to suppress criticism.

FIRE’s amicus brief documents multiple examples of school boards, city councils, and other government assemblies silencing their constituents under vague and overbroad decorum policies. As these incidents show, appeals to decorum are often smokescreens for shutting down unwanted criticism.

Mayor Owens of Eastpointe, Michigan

FIRE sues Michigan mayor who abused power, shouted down constituents at city council meeting

Press Release

FIRE filed a lawsuit against the mayor of Eastpointe, Michigan, for censoring residents during public comment in city council meetings.

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For a stunning example of a government official abusing her power to stifle criticism in the name of decorum, look no further than FIRE’s recent lawsuit against the mayor of Eastpointe, Michigan. At city council meetings, Mayor Monique Owens repeatedly shouted down and interrupted constituents who attempted to comment on her public dispute with another council member. The mayor cited a policy banning public commenters from directing speech at a council member, yet had no objection to a supporter calling her “beautiful” and “wonderful.” 

In another case last year, a Maine parent successfully sued a school district for violating the First Amendment by banning him from school board meetings for “obscenity” after he complained about a school library book he said depicted “hardcore anal sex.” The same parent is now suing the district again, challenging a board policy that prohibits “complaints” about school employees. His new lawsuit alleges the school board twice had police remove him from board meetings for criticizing board members by name.

All around the country, elected officials are sanitizing public comment periods in defiance of the First Amendment:

  • In Louisiana, a security guard removed a teacher from a school board meeting, arrested her, and booked her in jail overnight after she objected to the school superintendent receiving a raise. 
  • A Minnesota school board chair cut off a member of the public for framing her critical comments as questions.
  • In Newton, Iowa, city officials arrested and prosecuted a resident for repeatedly using public comment at a city council meeting to criticize a police traffic stop (he was ultimately acquitted).
  • The West Virginia House Judiciary Committee cut the mic of a public commenter who, while opposing a bill that would allow oil and gas drilling on private land without the owner’s consent, named committee members who had received financial contributions from energy companies. 

“If you don’t have anything nice to say, don’t say anything at all” might be a good rule for a kindergarten classroom, but the First Amendment requires government officials to endure the “unpleasantly sharp attacks” that sometimes arise from our democracy’s “uninhibited, robust, and wide-open” debate on public issues. 

The solution: Courts need to remind elected officials that viewpoint-discriminatory, unreasonable, vague, and overbroad decorum policies violate the First Amendment.

The above examples of suppressing speech are unconstitutional. As FIRE’s brief to the Eleventh Circuit explains, the Brevard County School Board’s policies against “abusive,” “obscene,” and “personally directed” comments violate the First Amendment in several different ways, all of which compel the court to rule in favor of Moms for Liberty.

First, the school board’s nebulous ban on “abusive” speech discriminates based on viewpoint. The Supreme Court has ruled that the government may not bar speech it considers disparaging, immoral, or scandalous because doing so “distinguishes 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.”

It is never “reasonable” to bar criticism of controversial board actions at board meetings, even if that criticism necessarily involves vulgar or profane speech.

The school board made these exact types of subjective social norm-based distinctions to suppress “abusive” criticism from Moms for Liberty members. For example, one Moms for Liberty member was cited for using the word “evil.” As described in FIRE’s brief, the definition of “abusive” was entirely up to the school board’s discretion, and one board member testified that the term was so broad that she didn’t “know that there even is an exhaustive definition of abusive.” 

Second, the school board’s blanket ban on “obscene” speech is unreasonable because it impedes commenters’ ability to speak about relevant issues — defeating the entire purpose of soliciting public comments. As FIRE’s brief explains:

Generally speaking, obscenity, properly defined, is one of a very few categories of speech that may be banned under the First Amendment. But unprotected obscenity is significantly narrower than everyday profanity, and the former’s exacting legal definition does not prohibit the use of “curse words” in public spaces, even in courthouses.

The school board ignored this important distinction and repeatedly cited Moms for Liberty members for “obscene” speech to suppress criticism of school board policies. For example, the board cited one Moms for Liberty member for using “unclean” language when reading from a school library book — even though her very complaint was that the book’s language was too inappropriate for school children. Another parent was cited for saying “penis” to describe and complain about a case of indecent exposure on campus. 

It is never “reasonable” to bar criticism of controversial board actions at board meetings, even if that criticism necessarily involves vulgar or profane speech.

Public comment periods don’t exist for the public to kiss leaders’ rings.

Third, the Brevard County School Board’s ban on “personally directed” comments is unconstitutional. The board unevenly applied it in a manner that discriminated against unpopular viewpoints: Public commenters were allowed to direct comments at specific board members on uncontroversial topics like theater rehearsal, but Moms for Liberty members were banned from making “personally directed” complaints about masking policies. 

The policy is also so vague that it does not clearly define a “personally directed” comment. Board members cited it to ban comments that did not name any specific person, such as a comment about a hypothetical “LGBTQ student” or general criticism of Democrats in the audience.

Under the Constitution, free speech trumps ‘decorum’

In short, the Brevard County School Board repeatedly cited unconstitutional decorum policies to shut down Moms for Liberty’s criticism, all because it didn’t like what Moms for Liberty members said or how they said it. But the First Amendment prohibits that kind of politically motivated speech suppression, especially at public hearings. 

Public comment periods don’t exist for the public to kiss leaders’ rings. Ideally, they offer the public an opportunity to share candid and potentially useful feedback directly with their elected officials. That’s how democracy works.

FIRE urges the Eleventh Circuit to rule in favor of Moms for Liberty and confirm that viewpoint-discriminatory, unreasonable, vague, and overbroad speech restrictions at public hearings violate the First Amendment. 

You can read more about the case, and FIRE’s brief, here

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