Promise to Apologize Might Be Enforceable—but Court Can't Order Apology if None Was Finally Agreed to
From Judge Mia Roberts Perez (E.D. Pa.) in Souderton Area for All v. Souderton Area School Dist., decided Sept. 28:
This case began as a case about Plaintiffs' exercise of their First Amendment rights by protesting at a Souderton Area School District ("District") school board meeting. It then became a case about keeping promises. Now, it is a case about which promises this Court can enforce.
When Plaintiffs protested the Souderton Area School Board outside a September 2024 meeting, the government officials for whom their message was intended were not the only ones affected. One school board member was accompanied by her teenage daughter as they exited the meeting. In the parking lot, Plaintiffs Christopher Spigel, Helen Spigel, and Patrick Kitt confronted them. Rather than constraining their critical expression to the adult members of the school board, the protesters directed their ire toward the child, who the District has consistently maintained was frightened by the adult Plaintiffs' conduct.
Here are plaintiffs' allegations as quoted in an earlier decision:
According to the Complaint, in August 2024, Plaintiffs and other District community members learned that then-member of the Board of School Directors of Souderton Area School District (the "Board") William Formica posted lewd comments on social media about Vice President Kamala Harris, disparaging teachers and non-English speakers, and deriding diversity programs. In response, Plaintiff Souderton Area For All ("SAFA") encouraged its members to attend District Board meetings to protest and demand Mr. Formica's resignation.
The August 29, 2024 Board meeting saw high attendance of community members opposed to Mr. Formica's remarks, as well as a rally organized by SAFA to protest. But the Board did not allow SAFA or its members to demonstrate on District property, requiring them to gather on a public sidewalk 80 feet away from where the meeting was held.
At the same time, the Board permitted supporters of Mr. Formica to gather and counter-protest directly outside the meeting's entrance on District property. Due to increased attendance, the Board began requiring meeting attendees to provide photo-ID so that they could prioritize seating for District residents. Several individual Plaintiffs were excluded from meetings as a result of this new rule.
On September 26, 2024, as Board members exited a Board meeting, Plaintiffs Patrick Kitt, Christopher Spigel, and Helen Spigel protested by making cricket noises and accusing the Board of being complicit in Mr. Formica's misconduct through its silence. One Board member was accompanied by her teenage daughter, who was upset and intimidated by the protesters directing questions and accusations to her.
Two weeks later, the District issued cease and desist letters to Plaintiffs Kitt, Spigel, and Spigel, informing them they could not be on school property for the remainder of the school year, including for public meetings. On November 20, 2024, Plaintiffs filed this lawsuit, alleging the District's actions violated their rights to free speech and due process. In addition to the Complaint, on November 20, 2024, Plaintiffs filed a Motion for a Temporary Restraining Order ("TRO"), seeking to enjoin the District from enforcing its ban on Plaintiffs from entering school property for the remainder of the 2024–25 school year and allowing Plaintiffs to enter school property to attend school board meetings and other events on the same terms as other members of the public….
[T]he Court enforces the settlement promises …: continued livestreaming and archiving of Board meetings; rescission of the cease-and-desist letters; completion and maintenance of the designated protest/gathering area consistent with applicable law; and payment of the attorneys' fees already authorized.
What exactly was allegedly said to the daughter? According to a letter from the school district's lawyer attached to the Complaint,
It is my understanding that you … began screaming erroneously believing that [Board member Kim Wheeler's] daughter was Bill Formica's daughter. You screamed: "Tell your father he's an asshole" and "Tell her dad he's a fascist and needs to resign."
We are also advised that Jim Wheeler admonished you not to speak to her daughter because she is just a child and Bill Formica was not her father. You once again began yelling at Kim Wheeler's daughter to: "Then tell your mother to stop saying silent and she's just as bad as Bill."
On the other hand, the plaintiffs' counsel describes matters differently (in response to an e-mail from me):
As to the plaintiffs' position regarding what was said at the September 26, 2024, school board meeting, Chris Spigel recalled asking "does the child know her dad is a fascist?" and Patrick Kitt recalled that he called Board Member Formica a "coward" and a "beta male" but did not say anything to Board Member Wheeler's daughter, who was 15 at the time.
The e-mail also disputes other claims in the letter from the school district's lawyer, related to how close some of the plaintiffs were to Formica and her daughter; it cites surveillance video at https://www.youtube.com/watch?v=Th8y29iZjY0 (though noting that the video has no sound).
And now back to the Sept. 28 decision on the apology:
After the District retaliated against Plaintiffs and Plaintiffs brought this lawsuit, the parties engaged in lengthy settlement negotiations. At all times, the settlement terms included a promise by Plaintiffs to issue an apology to the child who was personally, adversely affected by their conduct.
The settlement negotiations ultimately broke down, and this Court granted the District's motion to enforce the settlement agreement on promissory estoppel grounds. The Court found that Plaintiffs promised to dismiss the lawsuit and apologize to the child, that the District relied on those promises when it took definite and substantial action to fulfill its own obligations under the settlement agreement, and that it would be unjust to allow Plaintiffs to walk away after the District's actions in reliance.
Plaintiffs move for reconsideration of one part of the Court's order, which was sealed due to the confidential nature of the parties' agreement. The Sealed Supplemental Order required Plaintiffs to keep their promise to apologize to the board member's teenage daughter, an innocent bystander who no one disputed was caught in the crossfire of the protest and experienced emotional distress as a result.
As adults, as community members, and as parents, people recognize the importance of teaching children by example: showing them kindness and respect, and taking accountability for their choices so that their children may follow those examples in their treatment of others. It is not controversial to acknowledge that the ethical thing to do when an adult harms a child is to apologize to that child, even if the harm was inadvertent.
The First Amendment, however, limits the Court's ability to compel an apology. A party may waive First Amendment rights through an agreement, but courts presume against waiver of fundamental rights. Any waiver must be voluntary, knowing, and intelligent, and supported by clear and compelling evidence.
Here, the record does not establish such a waiver. The proposed apology changed throughout the negotiations—including who would issue it, what it would say, and how it would be delivered—and Kitt's willingness to apologize was conditioned on resolution of all other settlement issues, a condition that was not met. For these reasons, and those discussed more fully below, Plaintiffs' Motion for Reconsideration is granted….
Plaintiffs argue the Sealed Supplemental Order violates their First Amendment right against compelled speech. Defendants oppose, asserting that the Order at issue here merely enforces a promise Plaintiff Kitt made, through which he waived his First Amendment right….
[G]enerally applicable laws do not offend the First Amendment simply because they have incidental effects on speech. See Cohen v. Cowles Media (1992) (finding that allowing promissory estoppel action based on promise not to disclose confidential source's identity did not violate First Amendment despite incidental consequence of inhibiting truthful reporting because "the First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law"). "First Amendment rights can be limited via contract."
However, there must be "'clear' and 'compelling' evidence of waiver and that waiver is voluntary, knowing, and intelligent." "[C]ourts must indulge every reasonable presumption against waiver of fundamental constitutional rights." In the context of the First Amendment, a waiver must also be "freely given."
Typically, courts lack the power to order litigants to apologize. See Devonish v. Atl. Cnty. Justice Facility (D.N.J. 2010) (collecting cases and dismissing claim for injunctive relief directing an apology because "the remedy of 'apology' is not cognizable, either within the meaning of a Section 1983 action or as a general legal remedy that a court has the power to order, under any provision"); see also Woodruff v. Ohman (6th Cir. 2002) (finding district court exceeded its equitable power when ordering defendant to apologize for gender discrimination because "[t]he apology will not provide any remedy … for which the damages imposed have not already accounted," and there was no authority "that would permit a court to order a defendant to speak in a manner that may well contravene the beliefs the defendant holds"); Ali v. Barton (N.D. Fla. 2020) (noting that the Court lacks the power to order defendants to issue "an unconditional apology")….
Throughout the settlement negotiations, the parties themselves disagreed about the nature of the apology. The apology was first raised as a term of the settlement at the settlement conference on January 16, 2025. The parties initially agreed that Plaintiff Stephanie Barnett Jamison would deliver the apology to the minor. The minor thereafter expressed that she would not accept an apology from Jamison because Jamison was not directly involved in the actions that frightened her. As of February 5, 2025, the parties were still negotiating the specifics of the apology.
Plaintiffs eventually agreed that Kitt was willing to provide the apology "so long as all other issues in the case are resolved." The issues were not fully resolved. Between February and May 2025, the parties continued exchanging drafts of the settlement agreement and making changes to certain provisions, including whether the parties would issue a joint press release, individual press releases, or no press release at all. That term was never resolved because the District did not accept Plaintiff's final proposal that the agreement be silent as to a press release until the offer was terminated. The Court already found that term material to the agreement.
As this Court previously explained, each of the drafts the parties exchanged contained materially different terms. Each constituted an offer or counteroffer, such that there was no settlement agreement that the Court could enforce under traditional contract principles. The Court agrees with Plaintiffs that Kitt could not knowingly, voluntarily, and intelligently waive his First Amendment right to be free from government compelled speech when his promise was conditioned on the parties' resolution of all other issues—a condition that was not met….
I am looking into getting unsealed the sealed supplemental order and the briefing related to objections to that order.
Emily Morgan and Joy Ramsingh (Ramsingh Legal, PLLC), and Solomon Furious Worlds and Sara J. Rose (ACLU of Pennsylvania) represent plaintiffs.