Speech is free. Regulating it costs money.

There are a lot of good reasons why our school board should not try to regulate how members of the public express themselves at board meetings; I identified some of them here. But I’m afraid arguments about the inherent value of vigorous debate and free speech are not going to sway enough board members. So this week, I tried to speak the school system’s language by focusing my objections on a different subject: money. Here’s my letter to the board:

I’m writing about the proposed public comment policy. Though I don’t think any policy regulating the speech of members of the public at board meetings is necessary or wise, I want to focus on one specific issue here: the potential for needlessly provoking expensive litigation.

At the last meeting, one board member suggested that people haven’t objected to the policy itself, but to how it might be applied. As a legal matter, though, I don’t think that’s the case. The way the policy is currently worded, it could generate litigation even if the board applies it fairly—and even if the board never applies it at all.

I'm not an expert on Constitutional law, but I do know that there are two ways to challenge a law that arguably infringes on freedom of speech. The first way is called an “as-applied” challenge. Under that type of suit, a plaintiff argues that the government has applied a law in a way that infringes on freedom of speech. The second way is called a “facial” challenge. Under that type of suit, the plaintiff does not have to wait for the government to apply the law unfairly; instead, he or she argues that the mere enactment of the law violates the First Amendment, because the law is so vague or overbroad that it chills protected speech, even if the government never applies it unfairly.

My concern is that the proposed policy is open to a facial challenge. The most problematic clause is the one requiring speakers to show "respect and decorum" and prohibiting “abusive, harassing, bullying, discriminatory, or lewd” remarks. Those words are simply too vague and open to interpretation; they could easily be interpreted to prohibit some protected speech. Since speakers won’t know in advance whether a given remark will run afoul of that clause, they may be deterred from saying things that are protected under the First Amendment: exactly the concern that facial challenges are there to address.

As a result, a would-be litigant won’t have to wait until the board applies the clause in a way that seems unfair. Instead, he or she could sue right away to ask the court to strike down the policy, on the grounds that it risks chilling protected speech.

The district is much worse off if its policy is subject to a facial challenge than if it is merely subject to an “as-applied” challenge. The board can at least control how it applies its policy. But, under the proposed policy, no matter how perfectly fair, even-handed and conservative the board intends to be with the policy, it can face expensive litigation via a facial challenge.

My suggestion (if you adopt a policy at all) is to delete that clause and substitute a clause requiring speakers’ remarks to be germane to school district business. As I understand it, the “limited public forum” doctrine exists precisely to allow the government to restrict certain forums to particular subject matter, so that kind of clause seems much safer from a facial challenge. The board could still trigger a lawsuit if it applied the clause in a way that penalized protected speech, but at least that’s within the board’s control.

That said, if the board wants to minimize the risk of costly litigation, it should not adopt any policy regulating how people express themselves at board meetings. I believe it will be very hard for the board to apply such a policy in a viewpoint-neutral way. For example, I doubt the board will consistently treat speakers who compliment district employees the same way it treats speakers who criticize them, and I doubt it will consistently treat people who applaud others’ remarks the same way it treats people who “boo” them—as it would be constitutionally required to do. Ultimately, trying to regulate how people express themselves at board meetings is just asking for litigation and needless expense.

For example, here is a link to a case involving a similar policy adopted by a school district in Virginia. In that case, the school district enacted a policy designed to “preserve decorum and order” at board meetings. The policy prohibited speakers from “attacks or accusations regarding the honesty, character, integrity or other like personal attributes of any identified individual or group.” The court held that the policy violated the First Amendment, stating:

The Supreme Court has long since warned about the pernicious effects of an artificially controlled public debate and have held that the First Amendment serves to prevent such manipulation. . . . A policy that chills protected speech cannot stand.

Two similar cases are here and here. Those cases are not from the Supreme Court and so are not the final word on the matter. Here is one case, not quite as analogous, in which a court upheld a planning commission’s ejection of a disruptive speaker. But to the extent that there is any uncertainty in the law, that’s exactly what generates arguments and litigation. If the board proceeds with the policy, it will be risking litigation, and that risk has a dollar cost. Given the school district’s many urgent fiscal needs, I do not believe that risk can be justified.

Several other bloggers—all of them lawyers, incidentally—have chimed in on the proposal as well; see posts here, here, and here.
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