The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Friday's decision by Judge Lynn Adelman (E.D. Wis.) in Anderson v. Hansen:
[Heidi] Anderson is the mother of two children who attend schools within the Elmbrook School District. On August 11, 2020, the Elmbrook Board of Education held a public meeting to address the District's procedures for dealing with the COVID-19 pandemic. One of the measures under consideration was a requirement that all children attending school in person wear masks to minimize the transmission of the virus through respiratory droplets. Anderson attended the meeting in person and signed up to speak about the proposal.
Anderson opposes mask mandates in general, and she was against the District's proposal to require children to wear masks at school. The Board allowed her to express her views during the time allotted for citizen comments about the proposal. She was given two minutes to speak. When she was called to the podium, she delivered remarks that lasted over eight minutes.
During her remarks, Anderson gave a variety of reasons for opposing the mask proposal. Some reasons related to her faith. Anderson is Christian, and she believes that wearing masks is inconsistent with the Christian faith. During her remarks, she expressed her view that "[s]ix-foot distance and masks are a Pagan ritual of Satanic worshipers." She stated that because her family is Christian and does not practice Satanic worship, her children are not made to "stand six feet apart from each other with facial coverings."
Towards the end of her remarks, Anderson turned her attention to Dr. [Mushir] Hassan, a medical doctor and school board member whom the Board had designated as its medical liaison:
"[Mrs. Anderson:] Dr. Mushar, and I hope I'm saying this correctly, you are not the right choice to be the Board liaison. You do not practice in infectious disease, you have political leaning contrary to the will of this district. You online state that you're a big Obama fan and you comply mentally with his control philosophy, and you have publicly slammed our president Trump online. I'm finishing. As a leader in the Islamic community—
"[Interjection by School Board President:] Heidi, we have to avoid defamatory comments.
"[Mrs. Anderson:] This is not defamatory. I'm stating facts. [To Dr. Hassan:] You are a leader in the Islamic community are you not, and a leader on the Board—
"[Board President:] Heidi.
"[Mrs. Anderson:] O.K. Well listen, my kids are Christians. They are not subject to wearing face coverings. Christian children should not be forced to wear face coverings any more than children who are Islamic or Muslim should be forced to, as you've put it, 'be subject to the American style sexualization of children,' and have to wear less clothing than you're comfortable with your children wearing….
"[To the Board generally:] You are employed by the people of Brookfield and Elm Grove, you are elected to serve us. And the Elmbrook School administration works at our pleasure. You do not work for Madison, or any other unelected entity—our government is of the people, by the people, and for the people. This is one country, one nation under God, and we look to God for these answers when we can't figure it out and I would suggest that you all do that. There is a wonderful prayer that he taught us to pray, it's called the Lord's prayer, and you can find it in your Bible. Thank you for your time."
The board meeting was broadcast over the Internet. Anderson later learned that her comments had sparked controversy online. Some observers described her remarks as "ignorant," "Islamophobic," and "insensitive." In response to these comments, the Elmbrook School District contacted community members and told them that the District condemned Anderson's remarks. The District also "censored" a portion of Anderson's comments, which I assume means that the District edited the archived video recording of her comments to remove the comments she directed towards Dr. Hassan. Further, on August 12, 2020, the day after the meeting, the School Board published a statement on its website in which it apologized to Dr. Hassan and expressed its view that Anderson's statement was unacceptable….
[After some more back-and-forth, Superintendent Dr. Mark Hansen] informed Anderson that she would not be allowed on any District property without the prior approval of either the superintendent or the principal of her children's school…. Anderson may not attend a Board of Education meeting or participate in events at her children's school, including her daughter's dance recitals, without first obtaining permission from the superintendent or the school principal. Moreover, because Anderson's polling place is located inside an elementary school in the District, she may not vote in person without first receiving permission from the superintendent or a school principal….
Anderson sued, and Judge Adelman ruled that she was entitled to a preliminary injunction, because she had "a very high likelihood of success on the merits of her First Amendment claim":
At the outset, I note that this case does not require me to determine whether Anderson's comments towards Dr. Hassan displayed religious intolerance or were inappropriate, hateful, or offensive. For even if they were, the First Amendment would protect the plaintiff's right to make them. See Matal v. Tam (2017) ("Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.' "); id. (Kennedy, J., concurring) (recognizing that, with few exceptions, "it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys"); Rosenberger v. Rector (1995) ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys."). Thus, basic First Amendment principles prevent the District from subjecting the plaintiff to adverse action for no other reason than it considered her speech at the board meeting intolerant, offensive, or hateful….
The government may place reasonable time, place, and manner restrictions on speech and regulate its own meetings. Thus, the District could have enforced its two-minute time limit for citizen comments and cut the plaintiff off once she exceeded the limit. Moreover, if the plaintiff's comments to Dr. Hassan amounted to a personal attack rather than an attempt to express a viewpoint on the mask proposal, the board members could have told the plaintiff to keep her remarks focused on the issues or taken other action to prevent her from continuing to speak on topics that were not germane to the board meeting.
Here, however, the District's policy cannot be viewed as a reasonable time, place, and manner restriction or another permissible regulation of speech. The policy is not reasonably tailored to prevent the plaintiff from exceeding time limits, veering off topic, or being belligerent at future board meetings. Instead, the policy flatly bans the plaintiff from entering school property for any purpose without permission. This ban has no rational connection to enforcing restrictions on citizen comments at board meetings and thus can only be viewed as a way of punishing the plaintiff for the comments she made during the prior board meeting.
The defendants contend that their policy is designed to ensure that religious harassment is not tolerated on school property…. Perhaps the District is arguing that the policy is a prophylactic measure designed to prevent Anderson from entering onto school property and harassing others based on their religion. But this justification for the policy would be preposterous. It is not rational to think that because Anderson made religiously intolerant statements during her citizen comments at a public board meeting that she will roam the halls of the Elmbrook schools and harass those she encounters on the basis of their religion.
Moreover, in the unlikely event Anderson does engage in such behavior, the District could intervene at that time. As the defendants note in their brief, no person has an unlimited right to be present on school property, and the District has adopted a general rule that allows building administrators to eject disruptive persons from school grounds, Thus, if Anderson causes a disruption on school property, the District could have her removed even if the policy at issue in this case were not in force. This shows that the policy serves no rational purpose other than to punish Anderson for having expressed views with which the District disagrees….
Anderson seems like rather a fool to me, but, no, she can't be banned from school district property because she criticized a public official at a school board meeting, whether her criticism stemmed from hostility to Muslims or anything else.