Sixth Circuit Judges on Restrictions on Parents' School Board Meeting Comments

From today's concurrence by Sixth Circuit Judge Amul Thapar and Eric Murphy in Moms for Liberty v. Wilson County Bd. of Ed. You can read the panel opinion by Judge Jane Stranch, which is also joined by the other two judges, here. But there's a lot of procedural detail in the panel opinion, so I thought I'd focus on the simpler concurrence, which represents the view of a majority of the panel members, and lays out the constitutional issues (and briefly explains the procedural ones at the end):

For parents, few things matter more than their children's education. But when a group of moms began voicing concerns to their local Tennessee school board, they discovered that their input wasn't welcome. They now challenge the set of policies that restricted the tone, content, and format of their remarks. While I agree with the majority that the moms are not entitled to a preliminary injunction, I write separately to emphasize the troubling nature of the Board's rules.

Start with the Board's policy of cutting off "abusive" comments. The Board offers no guidance to distinguish "abusive" comments from critical or insulting ones. That distinction matters because the First Amendment prevents the government from discriminating against a speaker based on her viewpoint—regardless of whether that view is offensive or polite. When the Board bars offensive remarks but not flattering ones, it necessarily picks and chooses between opposing perspectives. This act of selection arguably makes the abusive-speech restriction an "egregious form of content discrimination" that is "presumed to be unconstitutional."

Put another way, the Board can't implement the equivalent of a "happy-talk" requirement that forces speakers to make their remarks "grammatically palatable to the most squeamish among us." In a free society, after all, the listener—not the government—decides whether remarks are worthwhile. And the price of that freedom is often unkind, offensive, or insulting speech.

Restrictions on this freedom aren't just unwise—they're usually unconstitutional. Our court has repeatedly held that "happy-talk" requirements like the Board's abusive-speech restriction cross the constitutional line. For instance, we have found a city council's policy barring "attacks on people or institutions … could be construed as viewpoint discrimination." Elsewhere, we invalidated a prohibition on advertisements likely to invite "scorn or ridicule," reasoning that the restriction necessarily discriminated "between two opposed sets of ideas." And most recently, we struck down a school board's policy barring "antagonistic," "abusive," and "personally directed" comments because it discriminated against speech that "opposes, or offends, the Board or members of the public." Our rule is simple: "the government may not censor speech merely because it is 'offensive to some.'" But the Board's abusive-speech restriction appears to do just that.

The Board's requirement that speakers announce their home addresses at the beginning of their remarks is little better. Policies that fall short of a direct prohibition on First Amendment expression may nevertheless amount to a constitutional violation when they "deter[ ]" or "chill[ ]" speech…. Forcing commenters to disclose their home addresses before speaking on controversial or hot-button issues seems particularly likely to silence a would-be speaker. And the Board seemed aware of this chilling effect: After permitting some commenters to proceed without disclosing their addresses, it appears to have enforced the requirement midway through a controversial comment, precisely because it was likely to deter the speaker.

The Board's policy that unplanned speeches must be "in the public interest" presents additional constitutional infirmities. In a limited public forum, the government "must be able to articulate some sensible basis for distinguishing what [speech] may come in from what must stay out." But the Board's requirement that speech be "in the public interest" doesn't meet this standard. Who, after all, is the relevant "public," and what's in their "interest?" Without answers to these basic questions, the policy invites "a virtually open-ended interpretation" and lacks "objective, workable standards" to guide its application. While the Board could certainly limit speech to school-related matters, the public-interest rule seems like a textbook "opportunity for abuse."

If Plaintiffs can establish standing to challenge the public-interest provision, their arguments may carry weight. In similar cases, our sister circuits have struck down rules barring speech that is "off-topic," concerns "public issues," or implicates "matters of public debate." These courts uniformly found the standards at issue "not … capable of reasoned application" because their interpretation and application depended on the government's say-so. Indeed, Moms for Liberty has elsewhere prevailed on a challenge to a school board's policies barring comments that were "personally directed" on this exact theory. It is difficult to see daylight between those unconstitutional policies and the Board's.

At bottom, there's a difference between a limited public forum and an unduly restrictive one. At a time when many parents are disengaging from public education, those parents who put in the effort to advocate for the wellbeing of their children—and their neighbors' children—should be celebrated, not silenced. The Board should have sought out the exact kind of content it censored: critical comments that flag problems and suggest improvements.

It was never required to force commenters to announce their home addresses, restrict the tenor or topic of their remarks, or curtail impromptu speeches on any subject. These efforts to limit parents' input into their children's education reflect the Board's judgment about the type of feedback that it values. And that choice speaks volumes. After all, what's the point of the meeting if only positive comments are welcome? The First Amendment protects the critic and the champion equally for a reason.

Plaintiffs fall short of the demanding standard for interim relief because the Board has not applied its suspect rules in over two years and has promised to keep it that way during litigation. But if the Board reinstated its policies or indicated that it would, Plaintiffs would be well-positioned to seek a temporary restraining order for prompt relief. And if Plaintiffs can establish standing, their allegations that the Board's remaining policies impermissibly chill protected speech deserve close consideration.