Public comment, everyone’s favorite topic! Alright, maybe that is a bit of a stretch for some, but the reality is public comment is here to stay and remains a legally tricky issue to navigate.
When the public speaks at board meetings, this directly implicates an individual's First Amendment rights. Inevitably, there will be times when a board would want to consider establishing rules and guidelines for the public comment process. We are here to remind you of some of the legal issues that can arise by unpacking a decision from the 11th Circuit.
In Moms for Liberty v. Brevard Pub. Sch., No. 23-10656, 2024 U.S. App. LEXIS 25394 (11th Cir. Oct. 8, 2024), the 11th Circuit found that a school district’s public comment policy in Florida was unconstitutional. The policies at issue were: (1) “no person may address or question Board members individually,” and (2) the barring of statements “too lengthy, personally directed, abusive, obscene, or irrelevant.” Throughout the court’s opinion, it became clear that a significant issue the school district faced was having an ill-defined understanding of terms like “abusive” or “obscene” and, historically, inconsistent application of the policies. Ultimately, the court found the ban on abusive speech, the rule against personally directed speech, and the prohibition on obscene speech all unconstitutional under the First Amendment.
What does all of this mean for school districts here? The key takeaways are as follows:
Boards generally cannot bar speech that is “offensive.” Obscene speech? Sure. But just “offensive” may not cut it. In Brevard, the board used the policy restricting such speech to ban name-calling. Even though name-calling is not everyone’s cup of tea, the First Amendment likely protects this kind of speech. Rules that prohibit viewpoint-neutral speech characteristics are more likely to pass constitutional muster. An example of a viewpoint-neutral characteristic rule would be a time limit.
Any time a board has a rule restricting public comment, the history of enforcement is critical if challenged. A court will examine whether a rule has been enforced arbitrarily or haphazardly. This means boards need to be on the same page about the meaning of any rules in place.
Make sure rules in place tie back to a clear goal. The court in Brevard struggled with the rule against personally directed comments because, in light of the inconsistent enforcement, the court could not see how the policy advanced the goal of “preventing disruption” or “maintain[ing] decorum.” As the 11th Circuit stated, “To be sure, sometimes meetings can get tense—no one enjoys being called out negatively, and some may even dislike public praise. But that is the price of admission under the First Amendment.”
Bans on speech that is “obscene,” “lewd,” “profane,” or “defamatory” can be lawful but are tricky. Words like “obscenity” under the First Amendment have been constructed in a relatively narrow manner. If a board uses these types of terms as criterion for regulating public comment (such as in KSB’s model public comment rules), consider how you’ve enforced those and whether some basic training on spotting speech of that variety might help, especially with new board presidents and board members taking over this time of year.
The 11th Circuit ultimately concluded its opinion by expressing that the “government has relatively broad power to restrict speech in limited public forums—but that power is not unlimited. Speech restrictions must still be reasonable, viewpoint-neutral, and clear enough to give speakers notice of what speech is permissible.” Remember, boards can make and enforce reasonable rules and regulations regarding public comment, but boards need to be looking at the application and understanding of the terms present in those rules.
If you have any comments of the nonpublic variety regarding these issues, give us a call at 402-804-8000 or shoot us all an email at ksb@ksbschoollaw.com.