Speech Codes at Flagler School Board and Palm Coast Council Are Now Illegal, Thanks to Moms for Liberty

Like the Decameron, the Covid era was a plague of 100 faces, most of them ugly and stomach-turning, some of them radiant with that human capacity to stare down calamity.

Crowding the ugly column: The school board civil wars that somehow mashed up masks and vaccines with gender, book bans, critical race theory, Christian nationalism, and the whitewash of history. Their vigilantes’ glorification of ignorance with selfie narcissism resurrected the Ugly American as never since the drunken binges of Joe McCarthy on the Senate floor. Meanwhile, millions died.

The new group that gave itself the Orwellian name of Moms for Liberty led the charge, its members’ corpulence jiggling with histrionics every time they addressed–hectored, jeered, threatened–a board or insulted groups of people, especially fags, trans, libtards and anyone dumb enough to wear a mask.

The occasional threat or obscenity aside, was any of this illegal? No. But school boards reacted as if it were, ours in  Flagler included. They imposed speech and behavior codes better suited for a police state or an HOA. They lectured, silenced, censored, expelled.

Four members of Moms for Liberty in Brevard County sued. They argued that the board policy controlling public conduct at meetings, a policy similar to Flagler County’s, was overly broad and vague, that its enforcement was arbitrary and biased, depending on the speaker or the chair’s mood. They were right.

They lost in federal district court. But in a decision that was itself lost in the furies of Hurricane Milton, they won on appeal. The Flagler County School Board should pay attention, because this is now controlling law. In several regards, the Flagler school board’s speech code is now violating the law. So is that of the Palm Coast City Council and many other local government boards across the state.

For example, the Flagler School Board prohibits public speakers from addressing board members or anyone but the chair by name, or–as do all local municipal boards–from directing a comment to anyone but the board chair, or from mentioning staffers by name. In other words, happy talk is ok, critical talk is not, the same way that boards approve of applause during happy occasions but ban it when they don’t want a speaker applauded. That’s content discrimination. It’s rampant at our local board meetings.

The court found those rules unconstitutional, especially since no board applies them when a speaker is lavishing praise on a board member or a staffer. The court ridiculed the prohibition on naming staffers. In Brevard, echoing similar and frequent censoring by current and past chairs in Flagler, the chair stopped one speaker with this Soviet-styled rebuke after the speaker mentioned an employee: “You’re putting their information out there in the public and it’s not yours to share.” Only at such board meetings is public information and names often documented in meeting materials considered “not yours to share.”

“Not only does this policy against personally directed speech not advance the goals that the Board claims it serves,” the court ruled, “it actively obstructs a core purpose of the Board’s meetings—educating the Board and the community about community members’ concerns. If a parent has a grievance about, say, a math teacher’s teaching style, it would be challenging to adequately explain the problem without referring to that math teacher. Or principal. Or coach. And so on. Likewise when a parent wishes to praise a teacher or administrator. Such communications are the heart of a school board’s business, and the ill-defined and inconsistently enforced policy barring personally directed speech fundamentally impedes it without any coherent justification.”

Meetings may get tense, “But that is the price of admission under the First Amendment.”

The Brevard speech code also confused the “offensive” with the “obscene.” Clearly someone gratuitously using four-letter words may be asked not to. But the board chair shut down speakers for using the word “evil,” the words “liberal left,” or the word “shit,” declaring the terms abusive. The court disagreed. “Restrictions that bar offensive or otherwise unwelcome speech are impermissible regardless of the forum in which the government seeks to impose them,” it ruled. (It’s as if Donald Trump was paying attention: in the days since the ruling, he’s started using the word “shit” in his stump rambles and encouraging his audiences to join him with call-and-response vulgarity.)

Of course Moms for Liberty gave offense. Their know-nothing ignorance massacred the truth, demeaned people for their sexual orientation and, most absurdly, demanded the right to read racy passages out of context from library books before demanding that the books be censored. (Irony was never a strong Momsy suit.)

But in every case, school boards were wrong to silence them. As the court ruled, “It is remarkable for the Board to suggest that this speech can be prohibited in a school board meeting because it is inappropriate for children when it came directly from a book that is available to children in their elementary school library.” Or as the U.S. Supreme Court unanimously put it, “giving offense is a viewpoint.” That 2017 case hinged on the right of a band of musicians of Asian extraction to call themselves “The Slants.” Offensive, yes (the band wanted “to ‘reclaim’ the term and drain its denigrating force”). But the Patent Office denied them a trademark. The court overruled.

Local chairs who like to slam their gavels invoke claims of “disruption” when they judge a speaker out of line. Disruption is impermissible at government meetings. No one wants to feel unsafe there (as I occasionally have, as I am certain local elected officials and innumerable members of the public have). But what is “disruption”? Just as overzealous cops who shouldn’t be cops at times opportunistically misinterpret a person’s asking question or complaining (or protecting themselves from blows and bites) as “resisting,” ramping up the charges, board meeting chairs do likewise when they want to shut someone up. They kitchen-sink the definition of disruption as anything they want to suit the moment.

Thus a raised voice is termed a disruption, when it isn’t. Thus coarse language, ever the easiest way for the powerful to disenfranchise the less pretentious, is termed a disruption, when it isn’t. Thus quoting the way a member of the public was treated by others in the audience, as someone at a Brevard meeting described being called “a bitch, a whore, a prostitute,” is termed a disruption, when it isn’t.

Disruption is interrupting proceedings from the audience, heckling speakers or board members or exceeding the three-minute speech limit. It’s incitement to violence. It’s preventing a board from conducting business. It’s not using codes as cudgels against viewpoints and shields from criticism. Board members are free to call out the lies and fabrications (it’s their responsibility to do so), but not to silence them.

It’s exasperating to hear people who address local government boards act like supplicants instead of citizens and say, “thank you for allowing me to speak.” It made former Palm Coast City Council member Bob Cuff cringe. He knew what elected officials rarely know, or at least acknowledge: public comment isn’t an allowance granted by the board. It’s a right, and not a right granted by the Constitution, or by government, but protected by the Constitution against government interference. Even Moms for Liberty’s original complaint flattered the trap: “State law allows individuals to speak at school board meetings…” No: State law codifies individuals’ constitutional right to speak at school board meetings, with broad latitude.

The 11th Circuit, thanks in no small part to Moms for Liberty, has just given local governments a wake-up call. Let’s hope our school board and cities answer it and follow the law.

Pierre Tristam is the editor of FlaglerLive. A version of this piece aired on WNZF.