Appeals Court Upholds School Board Speech Rules in Defeat for Moms for Liberty, For Now

A panel of the 11th U.S. Circuit Court of Appeals last week upheld a district judge’s denial of a preliminary injunction against the policy, which Moms for Liberty members contend has violated First Amendment rights.

Flagler County has similar rules in place since early 2020. The rules in part forbid speakers from addressing or criticizing school board members by name or make “personal attacks,” and give the meeting chair authority to warn speakers when they violate the rules, then ban the speaker from continuing if the rule-breaking persists. The rules also give the chair authority to recess the meeting, as was done on a notable occasion in August 2021 (when the board attorney recessed the meeting) after a chamber thronged with local Moms for Liberty representatives had become chaotic and abusive.

The precipitating issue, in Flagler as in Brevard, had been masking in public schools to prevent the spread of Covid. Moms for Liberty made largely baseless claims that masks were ineffective, as some school boards–Brevard among them, but not Flagler–defied the state and imposed mask mandates. The masking issue has long since become moot: the majority of districts never imposed mandates, and the 12 that had a mandate in one form or another had all lifted them by this time a year ago, when Moms for Liberty filed its lawsuit.

Moms for Liberty, which was founded by two former Florida school-board members, including former Brevard County board member Tina Descovich, has gained national prominence as it has fought school boards on issues such as mask requirements during the COVID-19 pandemic.

Gov. Ron DeSantis, who took the somewhat-unusual step of aggressively backing school-board candidates in this year’s elections, appeared in July at an inaugural Moms for Liberty “summit” in Tampa.




The group’s Brevard County chapter and individual members filed the lawsuit in November 2021 in federal court in Orlando and sought a preliminary injunction against the public-participation policy. Among other things, they contend that speakers are frequently interrupted for criticizing the school board, including for comments deemed “personally directed” at board members.

But U.S. District Judge Roy B. Dalton Jr. in January turned down the request for a preliminary injunction, writing that on “its face, the policy is both content- and viewpoint-neutral.”

“It allows the (school board) chair to interrupt speech only when it is ‘too lengthy, personally directed, abusive, obscene, or irrelevant.’ … And prohibiting abusive and obscene comments is not based on content or viewpoint, but rather is critical to prevent disruption, preserve ‘reasonable decorum,’ and facilitate an orderly meeting — which the Eleventh Circuit (Court of Appeals) has held on multiple occasions is permissible,” Dalton wrote.

The Moms for Liberty chapter and members quickly appealed to the Atlanta-based appellate court, with their attorneys writing in a brief that the “First Amendment does not exist to protect the speech that government officials find inoffensive. The rights of free speech and petition come into play only where, as here, government officials seek to silence views that they dislike.”

“School board meetings are limited public fora,” the March 16 brief said. “School officials may thus restrict the content of debate to school matters. But in doing so, they must tolerate all viewpoints. Americans cannot silence each other in a limited public forum by taking offense. But the record is clear: Defendants (the school board) interrupt, silence, and even expel speakers they find disagreeable from school board meetings when finding speech ‘abusive,’ ‘personally directed,’ or ‘obscene.’”




But attorneys for the school board fired back in a May brief, writing that the “record reflects that speakers at Brevard Public Schools’ school board meetings — including appellants (Moms for Liberty members) — routinely criticize the board and its policies without any interruption or comment from the board or its chair whatsoever.”

“The policy aims to ensure that speakers are able to share their perspectives, regardless of viewpoint, while preventing disruption or interference with the board’s ability to conduct its business,” the school board’s brief said. “The board has observed that comments directed specifically to individual board members tend to result in audience members calling out and becoming disruptive, whether in agreement or disagreement with the speaker’s comments. This precludes the board from conducting its business and inhibits public speakers from being heard.”

The appeals-court panel heard arguments Nov. 17 and issued a three-page opinion last week that said “we find no abuse of discretion in the district court’s thorough, well-reasoned order. We therefore affirm the district court’s order denying appellants’ motion for preliminary injunction.”

While the preliminary injunction was denied, the underlying lawsuit about the policy continues before Dalton.

–News Service of Florida and FlaglerLive