The Volokh Conspiracy

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Free Speech

Trump Elephant as Free Speech

|The Volokh Conspiracy |

From Judge Roy B. Dalton Jr.'s opinion in Maxwell v. School Dist. of Volusia County, handed down Oct. 23 but just posted on Westlaw; seems quite correct to me:

Plaintiff Tyler Maxwell … is … an eighteen-year-old senior at Spruce Creek High School … in Port Orange, Florida. To park in the lot adjacent to the School, Tyler paid $55 for a School parking decal. On September 14, 2020, he drove his pickup truck to School, but this time with a new passenger in the truck bed—a red, white, and blue elephant statue with "TRUMP" emblazoned on its side.

The school forbade this, arguing that:

School Board Policy 805 "reasonably regulates political activities in time, place, and manner of use while on School Board property" so the prohibition of Tyler's elephant does not violate Tyler's constitutional rights. Policy 805 prohibits "political posters, signs, banners, or any other writing which promotes a political issue, cause, position, or candidate" that is "permanently posted in or on school board property." The School concluded, Tyler's "political activity … occurred on school grounds, during school hours, and appears to give the imprimatur of public endorsement of partisan political positions or a particular candidate" in violation of Policy 805….

No, said the court:

The School's response contends the elephant is school sponsored expression, stating it gives the "imprimatur of public endorsement" and cites two school sponsored expression cases. But it would not be reasonable for the public to believe an elephant endorsing a presidential candidate, clearly placed in an individual student's car, parked in the school parking lot where mostly students park, represents the School's view. {That is no more likely than attributing to the School a student's bumper sticker message on the environment or affinity for Gator football.} {Neither is the elephant display associated with any curricular activity.

{The School published on its website the grounds for revoking a student's parking decal. The grounds do not include politicking. Failure to abide by school policy is a ground for revocation, but the policy Defendants cite prohibits "permanently posted" political signage. Tyler's elephant is not permanently posted on school grounds.}

The mobile elephant is pure student expression, and the School must tolerate it unless the expression "would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." To "justify prohibition of a particular expression" the School "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Accepting the truth of the verified allegations at this juncture, Tyler will likely succeed in showing the School did not have a reasonable belief his elephant would lead to a substantial disruption of school activities.

Tyler alleges the elephant did not disrupt students—it remained outside the School, in Tyler's truck. And the School allows other forms of political speech at that location, including bumper stickers. While the Court is mindful of the School's difficult task of ensuring a safe and orderly place of learning for students, "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tyler has shown a likelihood of success on his First Amendment claim….