Alachua County School Board attorney explains precedents on First Amendment rights
BY AMBER THIBODAUX
GAINESVILLE, Fla. – At an August 13 workshop, the School Board of Alachua County, the board’s attorney discussed the First Amendment rights of the public in board meetings and clarified best practices for board members’ social media posts. Board Attorney David Delaney gave a presentation titled “The First Amendment Rights of Elected Officials and Constituents,” where he went over the precedent set by previous court cases in relation to the public’s First Amendment rights during public comment at board meetings.
The presentation came just weeks after Board Chair Sarah Rockwell made a controversial comment from her personal Facebook account about the passing of former wrestler Hulk Hogan. Following her comment, which has since been deleted, the incident was picked up by national media outlets, and a large group of parents and residents showed up at the next school board meeting, mostly to express support for Rockwell. At one point in the July 31 meeting, Vice Chair Tina Certain ordered the removal of one parent after he made negative comments about Rockwell, and although the parent was allowed to stay after Delaney stopped the removal, Florida Commissioner of Education Stasi Kamoutsas ordered Rockwell to appear before the State Board of Education on August 20 “to demonstrate your compliance with state law. You will need to explain what correction actions have been taken to restore parents’ rights in Alachua County Public Schools.”
“1st Amendment in Action”
Delaney began by highlighting the standards that apply to free speech and public comment issues. After reading a portion of the First Amendment out loud, he stressed the importance of the constitutional right constituents have to tell their elected officials about their “grievances.”
“I think that’s an important word to remember. The constitution didn’t write into it the ability to come down and tell their government officials their thoughts or their ideas; it’s their grievances. So, it’s baked into the concept that people may come down here unhappy about something in particular –- something that they want an elected body to change about how they’re doing things,” Delaney said.
He explained to the board that in a “Limited Public Forum,” the government (or, in this case, the board) may restrict speech only if the restriction is “reasonable and viewpoint-neutral.”
“The things that we really need to be enforcing in the limits that we are putting on speech come down to maintaining viewpoint neutrality,” he said.
Delaney continued: “We’re not going to show favoritism towards one side or the other, and that’s really the key to handling all First Amendment issues. The way we go about doing that has to be shown to be reasonable, and reasonable usually translates into consistent … If you’re not consistent, then the court is likely to find that you’re not being reasonable.”
Moms for Liberty v. Brevard County Public Schools
Delaney cited a lawsuit brought by the group Moms for Liberty (MFL) against the Brevard County School District. In a constitutional challenge to Brevard School Board policies that placed restrictions on speakers at board meetings, the 11th U.S. Circuit Court of Appeals ruled in favor of MFL, finding that several of the Brevard School Board policies restricted speech at board meetings and violated the First Amendment rights of certain parents and community members.
Delaney pointed out that the specific board policies that were challenged in this case, including the authority of the board chair to “interrupt, warn, or terminate” a speaker, or the requirement to address only the board chair rather than other board members, were found to be unconstitutional because they violated the speaker’s First Amendment rights.
Delaney: “Just as well, in a viewpoint-neutral way, can they say, ‘This person is not doing a good job, and I’m going to tell you why, and this is what their name specifically is, too.”
“If someone’s got a concern, they can speak to any of their elected officials that they have here, and describing their grievances that they want changed, they’re allowed to say, ‘This person is doing a good job’ and call them out by name. Just as well, in a viewpoint-neutral way, can they say, ‘This person is not doing a good job, and I’m going to tell you why, and this is what their name specifically is, too,’” Delaney said.
Delaney also noted that the First Amendment is there to protect speech that the board may find uncomfortable or even offensive, and he again referenced the 11th Circuit, which cited a decades-old court case: “It is ‘firmly settled’ under our Constitution that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.’”
Delaney: “The speech that everybody agrees with doesn’t need any protection.”
“The courts tell us over and over that speakers have a lot of constitutional latitude to express uncomfortable ideas. The speech that everybody agrees with doesn’t need any protection,” Delaney said. “The 11th Circuit also reminds us that this offensive speech may well irritate, frustrate, or even offend, but that’s the necessary cost of freedom.”
In its opinion, the 11th Circuit Court also referenced a 2011 Supreme Court case, which Delaney again used to remind the board that the precedent for free speech is firmly settled.
“The 11th Circuit isn’t coming up with these quotes on its own; it’s not writing this material fresh. It’s pointing us back to the U.S. Supreme Court from 2011 in the Sorrell Case –- another example of the 11th Circuit using this foundation of prior cases to say that it’s going to be highly skeptical of local government, or any governmental entity, limiting free speech in this kind of scenario.”
Social media use by board members
Delaney then addressed the usage of social media by school board members, once more pointing to prior court cases where the precedent had already been set. He explained the difference between a public forum social media page and a private page, noting that personal or individual accounts that have existed for years and are not maintained by any district resources have much more latitude because they aren’t considered public forums; he said that campaign pages can also be considered to be private pages if they aren’t maintained by district resources. Delaney recommended that board members include a disclaimer on their personal social media accounts indicating that “the views expressed here are strictly my own.”
Blah, Blah, Blah
A Disclaimer on their FB page ought to work
I read it as – long bunch of stuff –> You can’t have people arrested and removed, just because you don’t like what they are saying.
“…a large group of parents and residents showed up at the next school board meeting, mostly to express support for Rockwell.”
I believe the large group was there more to protest those who had planned on showing up to voice their displeasure and objections to Rockwell’s comments than to support them. If they were there to support her comments, I guess it’s easy to understand another of societal problems plaguing Gainesville.
Speaking of Rockwell, was she exempt from training since the training was a direct result of her actions? Last I checked, she’s getting paid from both Democrat and Republican taxpayers, we should all get what we’re paying for.
Those who attended “in support of Rockwell” did not say they agreed that it was good Hogan had “assumed room temperature” (common mockery of dead liberals heard by millions on the radio multiple times by hero to the right wing, Rush Limbaugh), they said they supported Rockwell as a person and elected official. Remember, the GOP outrage campaign had already begun, starting with unelected school board member Pavic (sp?).
“Chair Sarah Rockwell attended virtually.”
This public school board doesn’t care about your first amendment right — they care about funding and growing their monstrosity of a business. The board attorney is doing his job and advocating for his board member’s free speech while simultaneously thwarting any mentions of parent’s free speech suppression. These people work for the school board — not the parents and students!!!! Y’all have to see the difference between the two.
Every damn meeting focuses on politics or funding or queers. Distraction after distraction while never addressing education
Slice, do you have an example of the school board violating someone’s 1st amendment rights, because this was not that.
This board is doing a far more effective job privatizing K-12 education west of 34th Street than any Republican ever could.
Every elected official should have to receive this presentation annually along with their other legally required duties like sunshine law, hatch amendment, and conflicts of interest. It’s a good reminder that they work for us not the other way around.
Sure, Just, but not this lame, off the point and self justifying presentation.
But how many GPD officers, and ASO deputies have been disciplined or fired over their Facebook posts on their own personal accounts. Double standard?
True, I guess it’s different for each discipline?
How many? You may have a good point, except elected officials are hired and fired by voters while employees are not, but by their superiors at work. The principle you raise still stands but there has been a reluctance to remove elected officials for that reason – they are the choice of the people. That is until Fuerer DeSantis.
Given that the Board of Education found there was a violation. Certain should be removed. Rockwell should be removed for her comments. A personal Facebook that a public official has becomes public when they throw their political sway into it. There has been several officers and officials that have been disciplined for comments on social media. Elected official and law enforcement take oaths to uphold laws, constitution, and morals. It is as disgusting as the parasites that wished Kat Kammack’s baby to die.
Bear, in case you haven’t noticed, the Board of Education is led by a political hack interested in partisan politics, not the truth or fairness about anything. You name who’s 1st amendment rights were violated at the meeting, but please watch the video including the other anti-Rockwell speaker before you do.
I am so confused regarding this entire incident!
None of this guy’s BS applies to what happened with “Jeremy”. When the Chair asked that he be removed, his speaking time was up and he was standing and loudly interacting with other attendees. This followed a highly personal attack on Rockwell in his last public remarks which was intende to be incendiary, and was. The 1st amenment does not protect that “viepoint”, anymore that it protects yelling fire.
This attorney was the cause of the disorder that followed because he cut off the only other option to the chair than the suspension of the meeting. Get a new attorney.
It’s embarrassing that the most experienced members (due to their time as school board members) didn’t know the basics about the First Amendment. Incredible.
Sarah Rockwell again proves herself a coward utterly unfit to lead.
She is so brittle and unable to handle the slightest criticism that even the mask she hides behind at meetings isn’t enough to comfort her any more, so now she hides at home.
You work for the people of Alachua County, Sarah, and you are doing a terrible job. We have the right to tell you that *to your face*, and you have to either take it or resign in disgrace.