Marshall v. Amuso, No. 21-CV-4336 (E.D.Pa. November 17, 2021). (Federal court concludes that school board policy governing public participation at school board meetings was unconstitutionally vague and an infringement on free speech rights).
Background
As provided by the Sunshine Act, the Board of School Directors of the Pennsbury School District allows public comment at its meetings. The District’s Policy No. 903, governing public participation at school board meetings, requires that speakers preface their comments by an announcement of their name, address and group affiliation if applicable. Additionally, the policy provides that the Board’s presiding officer may interrupt or terminate public comments deemed “too lengthy, personally directed, abusive, obscene or irrelevant.”
In March 2021, Douglas Marshall gave a public comment without interruption. After the meeting video from that board meeting was posted on the district’s website. Later, the District removed the video from its website to remove the comments deemed after-the-fact to be in violation of the public participation policy. The School Board President then issued a public statement explaining that the comments were removed because they “were abusive and irrelevant to the work taking place in the Pennsbury School District” and that “[t]he comments escalated from expressing a viewpoint to expressing beliefs and ideas that were abusive and coded in racist terms, also known as ‘dog whistles.’” She also apologized to the community for not interrupting Mr. Marshall as he was making his comments.
At the May 2021 board meeting, three other plaintiffs spoke. The meeting agenda included a presentation on the District’s equity program. First, Mr. Daly began by defending what the Board’s representative deemed to be Mr. Marshall’s “abusive” March 2021 comments. The assistant solicitor demanded that Mr. Daly terminate his comments because he considered them to also be abusive and irrelevant and thus in violation of Policy 903. He also interrupted Mr. Marshall’s comments because Mr. Marshall referred to the equity policy using a different programmatic title rather than the Board’s formal chosen title for that program/policy, and then terminated Mr. Marshall’s comments as abusive and irrelevant. Mr. Abrams endeavored to discuss survey results for the equity policy and voiced his opposition to funding a program for the portion of respondents that reported they were unhappy, and the assistant solicitor terminated Mr. Abrams’s comments as “irrelevant to diversity in education.” In each instance, the assistant solicitor shouted over the speakers during their allotted time segments, yelling “you’re done!” repeatedly until the speaker left the microphone.
At the June 2021 meeting, one of the plaintiffs criticized Policy 903 and the school board’s implementation of it. He finished his remarks, but the solicitor interrupted a portion of the allotted speaking time to state that personal insults or personally directed comments would lead to his comments being terminated.
Ultimately, the plaintiffs filed litigation in the United States District Court for the Eastern District of Pennsylvania seeking to enjoin the District from enforcing Policy 903’s prohibitions of speech deemed “personally directed,” “abusive,” “irrelevant,” “offensive,” “otherwise inappropriate” or “personal attacks” and its requirement that speakers publicly announce their address before speaking. Following an evidentiary hearing, the court found Policy 903 to be unconstitutionally vague and as interfering with free speech rights and enjoined the District from further enforcement of its policy.
Discussion
The First Amendment protections for free speech apply to speaking at public school board meetings. A school board meeting is a limited public forum in which content-based restrictions are valid as long as they are reasonable and viewpoint neutral. Thus, the court’s analysis focused upon whether, as written, the policy limitations on public comment were capable of objective application and whether, as applied, those limitations involved viewpoint discrimination.
The First Amendment protects offensive speakers, insofar as “giving offense is a viewpoint.” The court noted that the policy terms invoked by the school district to terminate the plaintiffs’ comments at meetings – “abusive” and “personally directed” – prohibit speech purely because it disparages or offends. Similarly, the court found that the term “disruptive” reaches constitutionally protected speech, observing that disruptive ideas, rather than disruptive conduct, also involves the expression of a particular viewpoint.
The court also found the limitations on public comments to be unconstitutionally vague and overbroad. While acknowledging that some degree of discretion in how to apply a given policy is necessary, the policy must provide objective, workable standards as to what constitutes a policy violation. What may be considered “irrelevant,” “abusive,” “offensive,” “intolerant” or “inappropriate” can vary from speaker to speaker and listener to listener. The court concluded that the vagueness of the limitations on public comment established by the policy has a chilling effect on free speech, since speakers have no clear guidance as to what speech is or is not permissible. The court took issue with the prohibition of “personally directed” speech as demonstrative of the overbreadth of the policy, noting that, while the school board could prohibit attacks not related to District business, criticism of individual employees is relevant to the purpose of the limited public forum of a school board meeting.
Lastly, the court ruled that the policy requirement that speakers preface their comments with announcement of their specific home address to be an unreasonable restriction because of the potentially chilling effect on speech particularly when speaking on hotly-contested issues. The court counseled that, to ensure that the speaker is a resident, the school district can collect his or her address with written forms in lieu of a public announcement.
Practical Advice
The limitations on public comments in Pennsbury School District’s Policy No. 903 at issue in this case – “abusive,” “irrelevant” and “personally directed” – are common to the public participation policies adopted by many school districts across the Commonwealth. In consideration of the court’s analysis and findings in the Marshall case, school districts promptly should review their public participation policies to clarify vague terms or to eliminate those that could be considered as allowing viewpoint discrimination.
Likewise, because most school districts limit public participation at school board meetings to residents as taxpayers as permitted by the Sunshine Act, it is common practice for moderators to request public speakers to publicly announce their address. Instead, school districts should utilize procedures by which speakers provide their address of residence on request forms or sign-in sheets in advance of the public comment period.
