Ohio federal court ruling on public speaking restrictions a possible warning to BPS

Bailey Gallion
Florida Today

Restrictions on public comments similar to those maintained by the Brevard County School Board have been found to violate the First Amendment in a federal court case.

Billy Ison, along with family and a friend, sued the Madison Local School Board in Ohio after he was removed from a 2018 school board meeting after expressing displeasure at a school board decision to arm staff.

A July 8 decision in the 6th Circuit US Court of Appeals found: “The restrictions on ‘antagonistic,’ ‘abusive’ and ‘personally directed speech’ prohibit speech because it opposes, or offends, the board or members of the public, in violation of the First Amendment.”

It noted that Ison spoke calmly in measured tones, refrained from personal attacks, and focused on his "stringent opposition to the Board’s policy and his belief that the Board was not being honest about its motives.”

Florida falls outside the jurisdiction of the Federal 6th Circuit Court of Appeals, which presides over Kentucky, Michigan, Ohio and Tennessee, so the decision is not binding in Florida.

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Brevard County School Board’s policy on public participation, last revised in 2014, closely resembles that of the Madison School Board. It states that the presiding officer at a board meeting may “interrupt, warn, or terminate a participant's statement when the statement is too lengthy, personally directed, abusive, obscene, or irrelevant.”

During a contentious March 9 school board meeting during which dozens of people arrived to debate accommodations for LGBTQ students, Belford stopped a speaker who referred to the “liberal left,” saying, “We are not going to do name calling … From anyone who is speaking tonight.”

Speakers are generally not allowed to criticize anyone, including board members, by name. In previous meetings, speakers have been warned for criticizing Jennifer Jenkins for her support of LGBTQ students and another board member for appearing briefly without wearing a mask in a promotional video for the district.

The restrictions have drawn frustration from speakers, some of whom have returned to voice grievances about the policy.

Belford, who was elected to the board in 2014 a few months after the policy was updated, said the rule preventing speakers from making statements that are “personally directed” are intended to prevent speakers from launching unfounded accusations against personnel such as teachers.

When members of the public are permitted to make personal attacks against people during meetings, “It doesn’t matter if they’re innocent, their reputation is ruined,” Belford said.

To fairly enforce the policy, the board does not allow speakers to make any personally directed remarks and requires everyone to speak only to the chair, Belford said.

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Virginia Hamrick, staff attorney at the First Amendment Foundation, said multiple Florida counties have similar rules preventing members of the public from criticizing individuals or making obscene statements. Hamrick said that public speaking portions of meetings are considered limited-purpose public forums. Government officials running these meetings may place reasonable limits on speech during these meetings.

Many government meetings restrict speaking periods to three minutes for members of the public, for example, Hamrick said.

Speakers at public government meetings have rights under both the First Amendment and Florida’s “Government in the Sunshine” law, which regulates public access to government meetings.

Under the Sunshine Law, members of the public must be given a “reasonable opportunity to be heard” on a proposition before a government board or commission. Florida statutes state that “does not prohibit a board or commission from maintaining orderly conduct or proper decorum in a public meeting.”

But decisions about what remarks meet the definition of obscene or uncivil remarks can be controversial, Hamrick said.

“Even the definition of ‘obscene,’ that's where the famous line from a Supreme Court opinion comes from: ‘I know it when I see it,’” Hamrick said. “It’s not super objective. And also with the word ‘abusive,’ I think what is ‘abusive’ to one person can be different to another.”

When disagreements arise, it’s up to the courts to decide. Hamrick said someone who believes their speech to be unfairly curtailed has an opportunity to sue their government.

“Through the Sunshine Law, that there is a provision that if a board is not providing a reasonable opportunity to be heard, a court has jurisdiction to issue an order and require the board to provide (that person) a reasonable opportunity to be heard,” Hamrick said.

Belford said the School Board must do its best to decide which comments break rules in the moment. She said she debriefs after every meeting with the board’s general counsel, and that he has never raised concerns about her enforcement of the rules.

“There’s no dictionary of words that would definitely be ‘abusive,’” Belford said.

Bailey Gallion is the education reporter for FLORIDA TODAY. Contact Gallion at bgallion@floridatoday.com.