The Volokh Conspiracy
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Much of Government Response to Parent's Criticism of School Board "Was Beyond the Pale," but Can't Justify an Injunction …
because there's not enough evidence that the response would recur (which is what is required for an injunction, which is a forward-looking remedy).
From yesterday's Third Circuit decision in Reading v. North Hanover Township, written by Judge Thomas Hardiman and joined by Judges Kent Jordan and David Porter:
Angela Reading, a mother and former school board member, alleged that federal and local government officials violated her right to free speech by engaging in a campaign of censorship and retaliation after she posted comments on Facebook. She requested a preliminary injunction to prohibit those officials from further interfering with her First Amendment rights. After the District Court denied her motion, Reading appealed.
{Reading's allegations are serious and raise important questions under the Free Speech Clause of the First Amendment. Reading expressed concern about whether her seven-year-old daughter was being exposed to sexual topics that have no place in an elementary school. Regardless of whether one agrees with Reading's concern, the record suggests that Defendants' response to her blog post was, to put it mildly, disproportionate.}
Although much of the government actors' behavior was beyond the pale, the record does not show a substantial risk that their acts of censorship and retaliation will recur. So Reading lacks standing to seek a preliminary injunction….
More on the factual claims:
The controversy that gave rise to this case unfolded at the Upper Elementary School (UES or School) in the North Hanover Township School District. As part of its 2022 "Week of Respect," the School invited students to design posters "demonstrat[ing] that UES [is] a safe place where everyone [is] accepted." Some students offered "messages of general acceptance," while others supported more specific causes.
One such poster, anchored in the center by the acronyms "LGBTQ" and "UES," featured descriptions of various sexual identities and their corresponding flags. The poster included a "bi" flag, a "genderfluid" flag, and a "polysexual" flag, among others. It announced that "different is cool" and instructed students that "you are who you are."
Angela Reading first saw the poster when she attended the School's "Math Night." After her seven-year-old daughter asked what the word "polysexual" meant, she was "livid." She took her concerns to social media. In a lengthy post to the "NJ Fresh Faced Schools" Facebook page, Reading wondered why an elementary school would permit its students to "research topics of sexuality," and worried that adults were "talking about their sexual life" with her children. She called the poster "perverse" and argued that it "should be illegal to expose my kids to sexual content." Although "[k]ids should respect differences," Reading explained, they "should not be forced to learn about and accept concepts of sexuality in elementary school." Reading concluded the post by noting that her comments were "made in [her] capacity as a private citizen and not in [her] capacity as a [school] board member."
Reading's post quickly drew the ire of military personnel at nearby Joint Base McGuire-Dix Lakehurst, some of whom had children at the School. Major Chris Schilling was especially fixated on the post. In an email to local parents, Schilling complained that Reading's post was "filled with too many logical fallacies to list." He accused her of "try[ing] to over sexualize things" to "give her arguments more power," insisting that she did "not hav[e] the proper resources and/or education on the matter." Schilling was "very concern[ed]" that Reading served as a local school board member.
Writing from his personal email account, Schilling also worried that Reading would "stir[ ] up right wing extremists." He raised this alarm in another email to parents, warning that Reading's post "could needlessly injure the school and others in the community." He encouraged parents to speak out against Reading and to "keep the pressure on until her disruptive and dangerous actions cease."
The controversy grew when Schilling elevated his concerns to the leadership at Joint Base McGuire-Dix Lakehurst. Now writing from his military email account, Schilling cautioned Major Nathaniel Lesher that Reading's post could "give[ ] a road map to anyone looking to make a statement, political, ideological, or even violent." In response, Major Lesher promised to forward the issue to Robert Duff, the Chief of Police for Hanover Township. After Reading's post gained modest traction online, Schilling once again contacted Lesher, who vowed to "push this again" to Duff..
Instead of de-escalating the matter to the Hanover Township Police, the situation intensified when more military personnel got involved. Air Force Antiterrorism Program Manager Joseph Vazquez wrote that Reading's post "really gets under my skin for sure." He assured Major Schilling that he was "sending this to our partners with NJ Office of Homeland Security and Preparedness as well as the NJ State Police Regional Operations Intelligence Center," which "keep an eye on far right/hate groups." And Lieutenant Colonel Megan Hall advised two local school superintendents, including Defendant Helen Payne, that Reading's posts "have created a concern for the safety of our military children and families." She worried that they "could become targets from extremist personnel/groups."
Major Schilling reported his colleagues' involvement to parents in the community. In an email sent from his personal account, Schilling explained that he had been "actively working with the base leadership over the past few days" and that "they are working to support us in our efforts."
Schilling's efforts bore fruit. On November 30, Chief Duff successfully convinced Nicole Stouffer, the administrator of "NJ Fresh Faced Schools," to remove Reading's post from the page. As Stouffer described the episode,
While professing that he was not actually ordering me to take the post down, Duff intimidated me into doing so by telling me that the post, and Mrs. Reading, were under investigation by Homeland Security because of the supposed potential for the post to cause a school shooting like the one that had occurred at Uvalde Texas, or a mass shooting like the one that had occurred at a gay nightclub in Colorado. Duff told me that the "threat" posed by this innocuous post was such he had had to provide extra security for the North Hanover schools because of the threat of violence. He was clearly and unequivocally pressuring me to censor the post while trying to pretend that he was not doing so.
After briefing military personnel on this development, Chief Duff promised to "continue to see if I can get additional posts removed from other social media posts."
The controversy didn't end there. One comment on Reading's post revealed the "location" of upcoming school board meetings, which were held at "times … publicly listed on the school website." So even though Reading's post had been taken down, Major Schilling feared that outsiders might still endanger the community. Worried for the "military parents [who] attend these meetings," Schilling sought even more support from base leadership. So Antiterrorism Program Manager Vazquez forwarded Schilling's concerns to the New Jersey Office of Homeland Security and Preparedness, who in turn notified the Burlington County Prosecutors Office Counter-Terrorism Coordinator. Meanwhile, Chief Duff offered to "continue to monitor social media and take appropriate action if needed."
Many of these developments were shared with the public. In a "Community Update" email, Superintendent Payne stated that recent events had "caused safety and security concerns for many families" and offered the following assurance:
[t]he safety and security of our students and staff is always of primary importance, and ensuring that has been my first priority, even as we responded to this situation over the past couple of days. I assure you that I have been in continuous close contact with the North Hanover Police and they have been very supportive and present for us. They are taking any risks very seriously, are aware of our concerns and have been working on their end to provide any support we need.
On top of these public-facing comments, Superintendent Payne and Chief Duff privately lambasted Reading in a string of text messages to each other. Duff called Reading "sick in the head," to which Payne responded, "[o]ld news." Duff asserted that Reading "should know better and keep her mouth shut," to which Payne responded, "She can't. She is not capable."
Major Schilling gave an update of his own. In a post to the Northern Burlington Parents Facebook page, he acknowledged that "[t]he current situation involving Mrs[.] Reading's actions has caused safety concerns for many families." But "[t]he Joint Base leadership takes this situation very seriously," and "Security Forces [are] working with multiple state and local law enforcement agencies to monitor the situation to ensure the continued safety of the entire community."
These efforts led to what Reading calls "an over-the-top show of force" at the next Board of Education meeting on December 13. She claims that Chief Duff arranged for "a multi-jurisdictional battalion of armed police officers, install[ed] a metal detector, and requir[ed] bag searches." Reading alleged that "panic-stricken attendees assailed" her at the meeting, "falsely accusing her of jeopardizing school safety when no 'threat' had ever materialized."
Reading defended herself in the media. She emailed government officials, appeared on national television, and was interviewed on local radio. She also published articles on a blog, which covered topics ranging from government censorship to developments in education policy.
After these events, Reading maintains that her "life and career were radically altered for the worse." Since the controversy began, Reading lost a job offer, resigned from her position on the Northern Burlington County Regional School Board, and withdrew her children from public schools. She blames Defendants, whose conduct "rendered [her] a pariah in her community."
All of this—emails, phone calls, text messages, community letters, heightened security, and referrals to counter-terrorism authorities—because of a single Facebook post.
The court nonetheless concluded that Reading wasn't entitled to a preliminary injunction:
Where, as here, the plaintiff seeks prospective relief to address future harm, she must show that "the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Evidence of "past exposure to illegal conduct" does not automatically justify an injunction against future violations, but it is relevant as "a launching pad for a showing of imminent future injury." …
Reading's primary evidence of future harm is the predictive value of Defendants' past conduct. Her emphasis is understandable, for "[i]f a plaintiff demonstrates that a particular Government defendant was behind her past social-media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant." But "easier" does not mean automatic. For example, in Murthy v. Missouri, the Supreme Court considered a request for a preliminary injunction barring a host of government defendants from coercing the removal of plaintiffs' social media posts. Plaintiffs argued that because the Government defendants had coerced the removal of their social media posts in the past, there was a substantial risk they would do so again. The Supreme Court disagreed. And it did so because the Government's alleged suppression campaign "had considerably subsided" by the time plaintiffs sued, so even the strongest evidence of past censorship could not show "a likelihood of future injury traceable to" the Government defendants.
Murthy dictates the outcome in Reading's case. The bulk of Defendants' allegedly unlawful conduct took place during a three-week period, and almost all of it ended by mid-December 2022. Superintendent Payne sent her "Community Update" on December 1; Chief Duff's heightened security ended upon the conclusion of a school board meeting on December 13; and the Federal Defendants' spate of communications slowed significantly by December 5. Indeed, during oral argument, Reading's counsel could not identify any unlawful acts by Defendants since the initial events nearly two years ago. Even if Defendants engaged in a conspiracy to deprive Reading of her First Amendment right to speak freely during the final weeks of 2022, any threat "had considerably subsided" by the time she sued in March 2023.
Reading's counterarguments are unpersuasive. She first quotes the Supreme Court's statement in Susan B. Anthony List v. Driehaus that Defendants' "refusal to 'disavow' past enforcement … indicate[s] a credible threat of recurrence." Her reliance on Driehaus is misplaced. That case involved a preenforcement challenge to an Ohio law that "prohibit[ed] certain 'false statements' during the course of a political campaign." In finding a "substantial risk" that the law would be enforced against the plaintiff, the Court relied on the Ohio Elections Commission's refusal to disavow the possibility of future enforcement, not its failure to apologize for past transgressions. Unlike the Commission in Driehaus, here the law enforcement Defendants confirmed that they are not presently surveilling Reading and have no plans to do so. The record supports them on that score. While Reading continues to author blog posts about the appropriateness of "LGBTQ+ issues in public schools," Defendants have done nothing more to silence or retaliate against her.
Reading also argues that the "voluntary cessation" doctrine excuses her failure to show a likelihood of future harm. That exception to the mootness rule provides that "a defendant's voluntary cessation of a challenged practice will moot a case only if the defendant can show that the practice cannot reasonably be expected to recur." And it ensures that a defendant cannot "suspend its challenged conduct after being sued, win dismissal, and later pick up where it left off." Unable to make out a likelihood of future harm, Reading relies on this doctrine to try to shift her burden of proof—under the voluntary cessation exception, it is Defendants who must make "absolutely clear that [their] allegedly wrongful behavior could not reasonably be expected to recur." Because they have not made this showing, Reading suggests, we have jurisdiction to reverse the District Court's order.
We disagree because Reading cannot recharacterize as mootness what is really a question of standing. This is not a case where Reading once had standing to seek injunctive relief but lost it during the pendency of litigation. Instead, "the issue here" is whether Reading "meets the preconditions for asserting an injunctive claim in a federal forum." Because Reading has not since the filing of her action established a likelihood of future harm, the doctrines of mootness and voluntary cessation provide her no refuge.
