The Volokh Conspiracy
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Court Rejects School District's "Heckler's Veto" of The Satanic Temple's After-School Meeting Application
From The Satanic Temple, Inc. v. Saucon Valley School Dist., decided yesterday by Judge John M. Gallagher (E.D. Pa.):
[According to the Complaint,] Plaintiff, The Satanic Temple, Inc. ("TST") "is a non-theistic, religious not-for-profit corporation" that "has been recognized by the IRS as a church… and as a religious corporation." Plaintiff, TST, "does not worship Satan," but rather regards "Satan … as a literary figure who represents a metaphorical construct of rejecting tyranny, championing the human mind and spirit, and seeking justice and egalitarianism for all." TST "has more than 700,000 individual members" who believe in the "seven Satanic virtues: benevolence, empathy, critical thinking, creative expression, personal sovereignty, compassion, and the pursuit of justice." TST sponsors the After School Satan Club ("ASSC" or the "Club") at "a number of public schools across the country to provide young people with an alternative to other religious clubs that meet on campus after school." …
The District's process for approving individual and community group use of its facilities is governed by the District's Board Policy 707 ("Policy 707"). Policy 707 states: "It is the policy of the Board of School Directors of the Saucon Valley School District to make available the facilities of the school district to organizations, associations and individuals of the community for civic, cultural, educational and recreational activities when the scheduling of these activities does not interfere with the educational program of the district." …
Because the District sponsors some after-school activities and groups, such as "Girls on the Run," "the Boy Scouts," "the Joetta [Sports] & Beyond Camp," the "Saucon Valley Youth Sports Association," and "Saucon Valley Youth Basketball," groups approved for use of District facilities that are not sponsored by the District must abide by the following Policy 707 limitation, hereinafter referred to as the "Advertising Restriction":
When advertising or promoting activities held at school facilities, individuals and community groups shall clearly communicate that the activities are not being sponsored by the school district….
The Satanic Temple initially got District permission to hold four After School Satan Club meetings on campus in the afternoon after school dismissal, but this was rescinded after someone left a school shooting threat on the District's voicemail (which led to the District's closing the school for a day) and then the District "received over 40 phone calls and 50 emails or handwritten letters, daily, from concerned staff, parents, and community members." TST sued, claiming the District's actions violated the First Amendment, and the court allowed the case to go forward:
"[A] school district is under no obligation to open its facilities to expressive activity by outsiders." A public school district, just like a private property owner, "has power to preserve the property under its control for the use to which it is lawfully dedicated."
However, where, as here, a public school district decides to open up facilities, such as classroom or meeting space, for use by the general public or community groups, it creates either a "designated" or "limited" public forum. Regardless of whether the District created a designated or limited public forum, the District is not permitted to discriminate against speech on the basis of viewpoint….
Here, TST states a colorable claim that the District's decision to rescind approval of its application and prohibit the ASSC from using school facilities for the remainder of the current school year restricts TST's speech based on TST's viewpoint, which shifts the burden to the District to justify its restriction on speech. TST credibly alleges the District rescinded approval of TST's application because of TST's "controversial viewpoint and [the] objectors' reaction to that viewpoint." …
Based on the District's quick rescinding of TST's application following widespread community backlash and threats of violence, Plaintiff colorably alleges the District engaged in viewpoint discrimination by rescinding approval of TST's application because of TST's "controversial viewpoint and objectors' reaction to that viewpoint." This alleged conduct is unconstitutional, as "[t]he censorship of messages because they are controversial is viewpoint discrimination." …
The District argues its restriction of TST's speech is justified under the First Amendment because the District determined TST violated the District's content-neutral Advertising Restriction contained in Policy 707 by posting social media advertisements on February 20, 2023 and February 23, 2023 that failed to clearly communicate the ASSC was not sponsored by the District. The Advertising Restriction requires all organizations not sponsored by the District to "clearly communicate that the activities are not being sponsored by the school district" when "advertising or promoting activities held at school facilities." …
[But u]se of government regulations or statutes as pretext to shut down an organization or business because of the content of its speech or some undesired secondary effects of that speech violates the First Amendment. The District has the burden of demonstrating its decision to rescind approval of TST's application is constitutional. The record before the Court does not support a finding, as the District claims, that "the decision to rescind approval of TST's applications resulted from TST's violation of Policy 707." Rather, such decision was unconstitutionally based on TST's controversial viewpoint….
The record (1) casts doubt on whether TST even actually violated Policy 707; (2) The record suggests the District enforced Policy 707 against TST in a manner inconsistent with its enforcement of Policy 707 as to other non-sponsored community groups; (3) The record does not support the District's argument that negative public backlash and criticism was caused by a mistaken belief that District sponsored ASSC [discussion of these three factors omitted, though you can see it in the full opinion -EV]; and (4) The record strongly indicates the District's decision to rescind TST's approval was motivated by unconstitutional considerations unrelated to Policy 707…. The District's own Superintendent, who made the decision to rescind TST's approval, stated in a March 2, 2023 e-mail to a District parent that:
It is difficult at times when the loudest voices are the most damaging in so many ways. This past week has not been the easiest… We couldn't do what other D[i]stricts have done. Unfortunately, it would have given the Satanic Temple exactly what they wanted, along with more publicity and ammunition and we may have been in a position have to take the Club back after thousands in legal fees, etc. We needed to put ourselves in the best position to fight this and hopefully, keep them out. I am not sure if we will see them back again, but I believe we are in a better position than other Districts have been. Sometimes true protection isn't noticed or noticeable immediately.
This statement strongly suggests the District's decision to rescind approval of TST's application was made not to evenhandedly enforce a content-neutral advertising restriction, but to remove TST from the District's facilities due to the controversy surrounding its viewpoint on religion….
In Good News Club v. Milford Cent. Sch. (2011), a public school district similarly opened district rooms and facilities for after school public use. There, the local Good News Club sought permission to use the district's school cafeteria for weekly after school meetings where the club would sing songs, hear Bible lessons, and memorize scripture. The school district denied the Good News Club's request because the district prohibited use of District facilities "by any individual or organization for religious purposes.". The Good News Club, as with TST here, filed an action alleging the school district violated its First Amendment rights and sought "a preliminary injunction to prevent the school from enforcing its religious exclusion policy against the Club and thereby to permit the Club's use of the school facilities."
In analyzing the claim, the Supreme Court assumed the school district operated a limited public forum, but noted that even in a limited public forum, the district's "power to restrict speech… is not without limits" and any restrictions on speech in the forum "must not discriminate against speech on the basis of viewpoint." The Supreme Court held it was "quite clear that" the district "engaged in viewpoint discrimination when it excluded the Club from the afterschool forum." The Good News Club, the Court held, sought "to address a subject otherwise permitted" by the district, which was "the teaching of morals and character." However, because the club sought to address this subject "from a religious standpoint," the district prohibited the Good News Club's speech. The Court held this prohibition of the Good News Club's speech based on their "religious viewpoint" as to an otherwise permissible subject matter of "morals and character" constitutes "impermissible viewpoint discrimination" in violation of the First Amendment The Court also rejected the school district's argument that permitting the club to use district facilities would cause students to "misperceive" the club's permission to use district meeting space as "the endorsement of religion," holding this concern is no greater "than the danger that [students] would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum."
The facts here are strikingly similar. TST sought access to the District's public forum for its after school club, the ASSC. Regardless of whether the District's public forum is designated or limited, the District is prohibited from engaging in viewpoint discrimination under the First Amendment.
TST sought access to the District's forum "to provide young people with an alternative to other religious clubs that meet on campus after school" and to express TST's viewpoint of the "seven Satanic virtues" and of "Satan … as a literary figure who represents a metaphorical construct of rejecting tyranny, championing the human mind and spirit, and seeking justice and egalitarianism for all." Accordingly, TST sought to present a constitutionally protected viewpoint on religion and philosophy.
The record indicates the District engaged in viewpoint discrimination by rescinding approval of TST's application based on the controversial nature of TST's viewpoint, and the negative community reaction thereto. See … Good News Club, 533 U.S. at 119 (declining to employ "a modified heckler's veto" as basis to bar group's speech in school district's limited public forum); Munroe v. Cent. Bucks School Dist. (3d Cir. 2015) ("The First Amendment generally does not permit the so-called 'heckler's veto,' i.e., 'allowing the public, with the government's help, to shout down unpopular ideas that stir anger.'").
The District's conduct is not justified by the "substantial disruption" test …. In Tinker v. Des Moines, the Supreme Court held "conduct by the student, in class or out of it, which for any reason … materially disrupts classwork or involves substantial disorder … is of course, not immunized by the constitutional guarantee of freedom of speech." In Dariano, the Ninth Circuit held this "substantial disruption" test articulated in Tinker permits school officials to "limit" student speech that "materially disrupts classwork or involves substantial disorder" even when the "substantial disruption" is "caused by the reactions of onlookers" and not the speakers themselves. Dariano v. Morgan Hill Unified Sch. Dist. (9th Cir. 2014). However, this school-setting exception to the First Amendment's general prohibition against suppressing speech based on negative reactions from listeners (the "heckler's veto") is designed to address only situations where student speech causes internal disruption and disorder. See Munroe (discussing public school setting exception to First Amendment's general prohibition of the "heckler's veto" applies to reactions of students and their parents because "neither parents nor students could be considered as outsiders seeking to 'heckle' an educator into silence—rather they are participants in public education, without whose cooperation public education as a practical matter cannot function."); Zamecnik v. Indian Prairie School Dist. # 204 (7th Cir. 2011) (holding that Tinker's "substantial disruption test" considers a school district's "legitimate responsibilities, albeit paternalistic in character, toward the immature captive audience that consists of its students, including the responsibility of protecting them from being seriously distracted from their studies by offensive speech during school hours.")….
In this action, the speech at issue is that of an outside community organization during after school hours, not of a student during school hours. The differences do not end there. Here, Defendants identify the shooting threat made by an anonymous caller causing the District to cancel classes for a day as evidence TST's speech caused "substantial disruption." However, this disruption was external—not internal. The anonymous caller was not a student or District parent, but rather an individual from North Carolina. Considering Tinker expressly trained the "substantial disruption" test on "conduct by the student," and the Seventh Circuit's determination that the test considers a school district's responsibility "toward the… captive" student audience, as well as the unwillingness of any other federal court to apply the "substantial disruption" test to non-student speech occurring after school hours based on the hostile reactions of an individual external to the school district, the Court declines to hold the "substantial disruption" test applies here to justify the District's conduct. That the Supreme Court has recently counseled that "the leeway the First Amendment grants to schools in light of their special characteristics is diminished" while considering the "substantial disruption" test further informs this Court's decision. Mahanoy Area Sch. Dist. v. B.L. (2021)….