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.

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


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  • icon
    Samuel Abram (profile), 14 Jul 2021 @ 10:20am

    Why is it…

    …that the same right-wingers who are whining the most about being silenced are the first to silence others?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 14 Jul 2021 @ 10:48am

      They’re often raised to never criticize certain authority figures. They then internalize that criticism aimed at them is wrong. People not used to hearing criticism will do anything to silence it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jul 2021 @ 10:56am

      Re: Why is it…

      right-wingers

      Don't buy into this left-wing/right-wing bullshit. People pick these labels like they pick sports teams, and trying to explain their choice of jersey with logic isn't going to get you anywhere. The labels conflate way too many disparate concerns to be useful.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jul 2021 @ 4:37pm

        Re: Re: Why is it…

        Agreed. One of my pet peeves is the left/right dichotomy, when in reality the situation is more complex. Take a look at https://en.m.wikipedia.org/wiki/Pournelle_chart for a method of labeling political beliefs that actually makes sense.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Jul 2021 @ 9:29pm

          Re: Re: Re: Why is it…

          Does it? The fascists (and the nazis) were strong proponents of planned social progress using rational methods. That their end goals and many of their methods were often monstrous does not negate this point (indeed, it’s something they share with many communists).

          Even if we use the examples listed to shoehorn “anything old” as irrational and “anything new” as rational, the fascists/nazis developed a variety of “new” social programs along with their “old” ones, so they should remain neutral on that axis at best.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2021 @ 12:50pm

        Re: Re: Why is it…

        Right-winger is the code (((Abram)))’s people use for White people who don’t hate themselves. When they talk about jailing, ‘erasing’, and ‘canceling’ right-wingers, it’s their technique for getting around prohibitions for advocating genocide of White people.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jul 2021 @ 11:09am

      Re: Why is it…

      Because its not about being silenced, but about their views and policies being the only ones that should be permitted. When they complain about being silenced, that are actually complaining that they are not being allowed to exercise the heckler charter.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jul 2021 @ 12:45pm

      Re: Why is it…

      Because placing one's own viewpoints and opinions above everyone else's is a prerequisite to demanding the others be silenced.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Jul 2021 @ 11:26am

    Charming priorties

    Respond to a school shooting by making it so that there are a lot more guns in the school, something that surprise surprise students and parents aren't too happy about and those people are just supposed to suck it up and deal with it, but someone saying something mean to them? Well that's just going too far!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jul 2021 @ 11:32am

    It's quite puzzling that Republicans simultaneously hate teachers and their unions and even demand body cameras be utilized to ensure they aren't teaching CRT, but then also want to arm those same people to stop school shooters.

    reply to this | link to this | view in chronology ]

    • icon
      Bloof (profile), 14 Jul 2021 @ 11:52am

      Re:

      So they can blame the teachers for not stopping shooters or crucify them for accidentally shooting the wrong child in the heat of the moment and turn public opinion against public education as a whole so they can ramp up the privatisation. It's also a good way to look like they have a plan, which is to shovel responsibility onto people who don't want it and have too much to do already, rather than actually doing anything about america's gun problem.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 14 Jul 2021 @ 11:56am

        Or, to put it more bluntly: “Some of you may die, but that is a sacrifice I am willing to make.”

        reply to this | link to this | view in chronology ]

      • icon
        sumgai (profile), 14 Jul 2021 @ 9:16pm

        Re: Re:

        America does NOT have a gun problem. Instead, it has an even more insidious issue... it has an idiot problem. Until that is solved, it won't matter what weapon is used (or if any is used at all), idiots will still clamor to be the poster boy of the month for post-natal abortion.

        reply to this | link to this | view in chronology ]

        • icon
          Bloof (profile), 15 Jul 2021 @ 6:54am

          Re: Re: Re:

          Every country has it's share of idiots, America is the only place in the developed world that gives them unrestricted access to firearms.

          https://www.bbc.co.uk/news/world-us-canada-57832053

          America is the only place dumb enough to manufacture guns shaped and coloured like children's toys, because not enough kids have guns or get murdered because they had a gun shaped toy.

          This should not be happening.

          reply to this | link to this | view in chronology ]

          • icon
            sumgai (profile), 15 Jul 2021 @ 8:02am

            Re: Re: Re: Re:

            When the only tool that you want to have in your box looks like legislation (to take away guns), then every problem starts to look like it's caused by guns.

            In point of fact, when you are seeing what looks to you like a "gun problem", you are actually viewing a strong lack of education, and an even stronger lack of parental focus on teaching their kids right-vs-wrong, i.e. morals. IOW, the anti-gun crowd is focused so narrowly on the symptom that we should not be surprised that they never learned about cause-and-effect - they should be focusing on the idiots who never got a moral compass in the first place. Correct that problem, and we're golden.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 15 Jul 2021 @ 8:19am

              Re: Re: Re: Re: Re:

              When the only tool that you want to have in your box looks like legislation (to take away guns), then every problem starts to look like it's caused by guns.

              Do you have enough guns to shoot down that straw man?

              reply to this | link to this | view in chronology ]

            • icon
              Bloof (profile), 15 Jul 2021 @ 8:40am

              Re: Re: Re: Re: Re:

              Uh huh, and America will keep on eroding what few laws there are to restrict access to firearms and cry 'Why oh why are there more mass shootings!? We've put as many guns as we can on the street and massacres keep becoming more frequent! The availability of guns and mass shootings aren't linked, they can't be, guns don't kill people, people do! The NRA said so and they can't possibly have a vested interest in putting guns in the hands of as many people as they can!'

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jul 2021 @ 1:13pm

      Re:

      Funny how the solution is always 'arm someone' - I seem to remember an 'armed deputy' in Parkland running for his life instead of using his weapon, which one must presume he was trained to do...and that chicken-shit coward got his fucking job back.

      So I'm wondering if the solution of arming teachers is designed to be a failsafe if the big, brave police SRO's shit their pants and run at the first sign of trouble.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 14 Jul 2021 @ 1:42pm

        'Guns are the problem. Specifically the low numbers of them.'

        Pretty sure you are seriously overthinking it and it's simply a case of the idiotic 'the best solution to a bad guy with a gun is a good guy with a gun' idea with no real thoughts beyond that because clearly the solution to guns in school is more guns in school.

        reply to this | link to this | view in chronology ]

        • identicon
          Bobvious, 14 Jul 2021 @ 3:13pm

          Re: 'Guns are the problem. Specifically the low numbers of them.

          An interesting conundrum there.

          The solution to the exercise of 1st Amendment activity you don't like, is MORE 1st Amendment activity, not less, but I'm not sure the same applies to the 2nd Amendment.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Jul 2021 @ 3:40pm

          Re: 'Guns are the problem. Specifically the low numbers of them.

          Yeah, I shoulda added the /s tag...

          I mean if armed SRO's won't do anything, surely armed teachers making a fraction of the SRO's salary certainly would.

          reply to this | link to this | view in chronology ]

          • icon
            TaboToka (profile), 14 Jul 2021 @ 4:40pm

            Re: Re: 'Guns are the problem. Specifically the low numbers of t

            surely armed teachers with a fraction of the ongoing training requirements...

            FTFY

            reply to this | link to this | view in chronology ]

            • identicon
              Travis, 14 Jul 2021 @ 5:00pm

              Re: Re: Re: 'Guns are the problem. Specifically the low numbers

              Considering the reported (lack of) ability of cops to hit their target, I'm sure requiring a simple firearm safety course would outstrip most police training requirements.

              reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 14 Jul 2021 @ 12:00pm

    spins the wheel of TAC truisms

    Ahhhh yes...
    Power causes a form a brain damage.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jul 2021 @ 2:46pm

    Replace board members who are clueless. Easy peashooter.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 14 Jul 2021 @ 11:34pm

    Note:

    No, Bobmail/Koby/Chozen - platforms, just like they aren't one particular shopping mall are not schools either, despite how often you keep getting schooled on this platform.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 15 Jul 2021 @ 8:21am

    Facts

    another Board member asked him to stop “putting words in [the Board’s] mouth” and saying things “that are not facts.”

    Just a side note, but what a weird comment. People aren't supposed to voice opinions at a school board meeting?

    reply to this | link to this | view in chronology ]


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