Tuesday, March 4, 2014

“The pernicious effects of an artificially controlled public debate”

When I wrote last week about how our school board would be risking expensive litigation by approving a proposal to regulate speech at board meetings, I linked to a federal case from Virginia, Bach v. School Board of the City of Virginia Beach. That case can give you some idea of the kind of litigation the board’s policy could trigger.

Here’s what happened in Bach: A school board in Virginia passed a policy “designed to preserve decorum and order” at board meetings. One clause in the policy required speakers to:
Avoid references, statements, or conduct reasonably likely to result in disruption or undue delay in the orderly transaction of the business scheduled for consideration by the Board. This provision means and includes, but is not limited to, attacks or accusations regarding the honesty, character, integrity or other like personal attributes of any identified individual or group. Such comments are prohibited because, by virtue of their personal nature, character and/or manner of presentation, they would fairly call for an immediate response by the person or group so identified, thus delaying or disrupting consideration of agenda items scheduled for consideration by the Board.
A member of the public sued, arguing that the provision was an unconstitutional abridgement of free speech. He argued that the provision acted “as a filter to screen out any negative comments toward the current administration, while allowing their proponents to speak at will.” The board never actually enforced the policy against the man who sued. He argued that the policy was invalid on its face, regardless of how it was applied, because it would deter protected speech.

The court found the provision unconstitutional. Here are some excerpts from the case. (Again, for readability, I have omitted citations and added boldface for emphasis. You can read the full opinion here.)
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. . . .

Two other school boards enacted policies similar to the contested provision in this case, and the courts reviewing these policies found both to be content-based restrictions. These policies contained different language, yet each had the same effect. Participants in an open session of a public meeting were permitted to praise the actions of school employees but were prohibited from making any critical or accusatory comments. The Baca Court, following the decision of the Leventhal Court, held that it is “difficult to imagine a more content-based prohibition on speech than [a] policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter.....” The Plaintiffs allege that the contested provision draws the same distinction on the content of the speech — favorable versus unfavorable — and under the reasoning in Baca and Leventhal, it cannot be considered content-neutral.

The Defendants [that is, the school board] explained that the contested provision only prohibits attacks that are targeted at school officials in their personal capacity. According to the Defendants’ interpretation of the contested provision, a speaker, therefore, is free to allege that a school official lied about spending school funds for personal use. That same speaker would be cut short, however, if the speaker called the school official a liar. The Defendants believe that this example demonstrates that the contested provision regulates the manner of the speech not its content.

The First Amendment affords the broadest protection to political expression in order to sustain the unfettered interchange of ideas to bring about political and social change and promote the will of the people. The Supreme Court has repeatedly explained that “it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion.” This includes the ability to question the fitness of the community leaders, including the administrative leaders in a school system, “especially in a forum created specifically to foster discussion about a community’s school system.” The contested provision tests the boundaries of the fine distinction between content-based and content-neutral regulations. First Amendment scholars, judges, and attorneys could engage in endless debate over whether it discriminates against speech on the basis of its content by allowing general praise while silencing criticism. Fortunately, the Court need not engage in such a comprehensive analysis, for a policy that deters individuals from speaking out on an issue of public importance violates the First Amendment. The contested provision has that effect and for that reason is unconstitutional.

If the contested provision would have been written in the language of the Defendants’ argument at trial, the Court may have concluded that it is a content-neutral restriction on the manner of speech. The Defendants’ lengthy explanation, however, does not solve the constitutional issue before the Court. Potential speakers do not have the benefit of the Defendants’ scholarly research of the constitutional basis of the contested provision when attempting to determine if their comments are in conformity with Bylaw 1-48(B)(2). Their only guidance is the Bylaw itself, and thus, the contested provision must be examined on its face without regard to the Defendants’ technical interpretation of its proscriptions. Some citizens may share the Defendants’ reading of the contested provision and may feel free to criticize school officials’ conduct without threat of sanctions. Other citizens, however, may not appreciate the distinction drawn by the Defendants between attacking the conduct but not the individual. These citizens may see no distinction between stating, “the principal is a liar” and “the principal lied to us about spending the money.” According to the Defendants’ interpretation, the latter would be acceptable but the former forbidden by the contested provision. It is reasonable for these citizens to read the contested provision and conclude that most comments critical of school officials constitute an attack on their honesty, character, or integrity and are therefore improper subjects on which to speak. Accordingly, their concerns may not be shared with their fellow citizens, and the “robust public debate” the First Amendment seeks to foster will be thwarted.

There is no indication that the School Board acted in bad faith in enacting or enforcing this restriction. The video shown by the Defendants demonstrates that Mr. Bach was not silenced when he accused several officials by name of being involved in a conflict of interest. Yet the content of the contested provision may prevent many citizens from so speaking. . . . A policy that chills protected speech cannot stand. The Court FINDS that the contested provision in Bylaw 1-48 is unconstitutional as a prior restraint upon speech in a limited public forum.
In that case, the school board policy also required speakers to refrain from “obscenity, vulgarity, or other breach of respect.” That particular clause was not the subject of the lawsuit, so the court did not examine whether it, too, was impermissibly broad or vague. But this case, from the Supreme Court, would certainly support an argument for striking down that clause, too.

Legal questions are seldom 100% predictable. Bach, and the two similar cases it cites, are from different jurisdictions and are not binding on courts here; nor do they involve exactly the same clauses that appear in our district’s proposal. My point here is just that the district is asking for trouble and needless expense with the language in its policy. How much is it worth?

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