Home News Federal court allows Brevard School Board speech rules, as Jenkins floats ending policy

Federal court allows Brevard School Board speech rules, as Jenkins floats ending policy

Federal court allows Brevard School Board speech rules, as Jenkins floats ending policy

TALLAHASSEE — A federal appeals court has rejected an attempt by a chapter of the conservative group Moms for Liberty to block restrictions that the Brevard County School Board placed on public participation at board meetings.

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.

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.

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New Brevard School Board members Gene Trent (left) and Megan Wright were sworn in Nov. 22, 2022.

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.

The policy, which the group’s Brevard chapter sought to block, limited the time speakers could talk from the usual three minutes to one minute, depending on the number who signed up to speak, and forbade them from directly addressing individual School Board members, among other conditions.

In January, U.S. District Judge Roy B. Dalton Jr. turned down the request from Moms for Liberty 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.”

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“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 October 26 Brevard County School Board meeting in Viera. Before the 5:30pm meeting, small, peaceful groups representing both sides of the mask mandate and opposing views regarding school board members were gathered outside.

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.

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In the end, the decision could become moot.

Following the installation of two new Moms for Liberty-backed members last week, the Brevard School Board approved a one-time suspension of the policy at its most recent meeting, which is allowed under the rules. 

School Board member Jennifer Jenkins also raised the possibility of doing away with the new policy entirely and returning to the previous public comment rules, which would allow speakers the full three minutes and the ability to directly address Board members.

“As the only Board member sitting up here who routinely voted against changing our public comment policy from the beginning, I would like our new Board members to consider us reverting back to our old public comment policy,” Jenkins said at the meeting.

Board members did not discuss the suggestion at Tuesday’s meeting, but School Board Chair Matt Susin did not dismiss the notion out of hand, saying the Board could “come back to it.”


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