In September 2021, I had the honor of testifying in Harrisburg about a Bucks County school board dispute and the state’s Sunshine Law. Recently, a dispute in Pennsbury was settled, but what will school boards and residents learn from this expensive lesson?
The First Amendment dispute caught my attention last July when a newspaper reporter asked me to comment on the fight between the Pennsbury school board and residents who objected to the board’s diversity policy – and were barred from speaking at the school board meeting’s public forum.
My first thoughts went back to a story I covered in 2018 about Fane Lozman of South Florida. He has been a frequent critic of the Riviera Beach city council, and one night, after Lozman began commenting about local government corruption at the public podium, a council member ordered a police officer to arrest Lozman. Lozman filed his own petition with the United States Supreme Court and won his case. “Lozman’s speech is high in the hierarchy of First Amendment values,” said Justice Anthony Kennedy.
Kennedy was talking about the idea of a public forum, which is the backbone of our free speech rights. For school board and government meetings, the public podium is a “limited public forum,” where a board can limit speech to topics that are related to its current and future business. But it cannot limit speech if the speaker’s viewpoint is disagreeable about those topics. It can only limit the speaker’s time at the podium to ensure the board has enough time to conduct other business.
Pennsylvania’s Sunshine Law reinforces these concepts. It also restricts podium access to residents and taxpayers. But the law clearly says that speakers can address issues “that are or may be before the board” at the public podium.
In the Pennsbury case, four residents upset with the school board’s diversity, equity and inclusion policy claimed “board members and designees” stopped them from speaking at the public comment section of Pennsbury school board meetings. According to a federal judge’s decision in November 2021, the school board’s attorney stopped three of the men from speaking because their comments violated school board policies that barred public comments that were “personally directed,” “abusive,” “irrelevant,” “offensive,” “otherwise inappropriate,” “personal attacks,” “intolerant,” “disruptive,” or “verbally abusive.”
The four residents said Pennsbury engaged in viewpoint discrimination, and they won in federal court. Judge Gene Prader cited one of the Supreme Court’s landmark cases, Texas v. Johnson, the flag burning case, to make her point. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Judge Prader issued an injunction against the Pennsbury public commenting policy in November. The dispute ended when the Pennsbury School District paid $300,000 in attorneys’ fees and $17.91 to each of the four residents—signifying the year that the First Amendment was ratified.
When I testified in Harrisburg last year, my comments to the joint House-Senate Local Government Committee were about Pennsbury’s deletion of these “objectionable” comments from the publicly published meeting video. The court never ruled on that subject.
So, what is the lesson learned here? To be sure, I have seen incidents where conservative and liberal school boards have censored “objectionable” comments, especially on their official social media and website accounts. It is also unreasonable to expect elected officials, who are volunteers, to be First Amendment experts.
For elected officials, my advice is to make sure a qualified attorney reviews any public commenting policy and ensure your board as a group and your management staff has First Amendment training. Also note that Pennsbury took corrective actions after the incidents but they were not enough to undo the damage in court.
For public commentors, there are ways to make a point without being offensive or disagreeable. But if you feel the need to do so, the Constitution protects your right to have a viewpoint in many cases (true threats, inciting riots, and words meant to provoke an immediate fight are not protected speech). Just make sure to read the meeting’s agenda or the board’s past minutes to stay on topic.
Scott Bomboy serves on borough council in Perkasie Borough, and he has written frequently about government and constitutional topics.