Moms for Liberty defeats school district that birthed it, speaking rules deemed unconstitutional

The Florida school district that birthed Moms for Liberty as a repudiation of its COVID-19 mandates on their children is parenting the conservative group all wrong, so to speak, according to the 11th U.S. Circuit Court of Appeals.

Its Tuesday ruling smacked down Brevard Public Schools and four current and former school board members for unconstitutional restrictions on public comments at their meetings in a lawsuit by Moms for Liberty's founding Brevard County chapter and its members, putting public schools on notice across the court's jurisdiction of the Sunshine State, Alabama and Georgia.

The opinion by Judge Britt Grant, joined by fellow President Trump nominee Judge Barbara Lagoa, overturns the trial court's summary judgment for the district, citing several incidents in 2021 that crossed the constitutional line for the Atlanta-based circuit.

Then-board Chair Misty Haggard-Belford cut off Lois Lacoste for "name-calling" when she used the term "liberal left" to describe those who support so-called gender affirming policies, claiming it violated a prohibition on "abusive" comments, but let LaCoste resume and finish her comment.

Belford even used the board's ban on "obscenity" to cut off Moms for Liberty member Michelle Beavers when she read aloud from a book in the school library about an "in-school sexual encounter" and got to the word "sh*t," ordering Beavers to "keep it clean."

Beavers read the passage to protest the book's availability to young children. 

"It would be difficult, if not impossible, for speakers to adequately air their concerns about a particular book without informing both the Board and the community about what that book says," Grant wrote.

"Describing the content of a book is not as potent as reading its words – nor is it as informative," the opinion reads. "And it is remarkable for the Board to suggest that this speech can be prohibited in a school board meeting because it is inappropriate for children when it came directly from a book that is available to children in their elementary school library."

Judge Charles Wilson, nominated by President Clinton, joined his Republican nominees to reverse and remand the Brevard policies on "abusive and obscene speech" to trial court for further evaluation but dissented on blocking the district's prohibition on "personally directed speech," finding it viewpoint-neutral and reasonable "in light of the forum."

He included links to video recordings of several interactions at board meetings "to illustrate the tenor of comments and interruptions" and show "the difficulties of enforcing these policies in real time during heated meetings."

It's a major win for Moms for Liberty after a nearly three-year legal battle to stop the "repeated interruption, silencing and even removal of parents from meetings when they attempted to voice their concerns about school policies, curricula or leadership when addressing the board," their lawyers at the Institute for Free Speech said Wednesday.

"This decision sends a clear message that school boards cannot use vague policies to silence criticism or discussion of uncomfortable topics,” said IFS Vice President of Litigation Alan Gura.

"When the government seeks to mute the voices of parents, it is the brave among us – those who refuse to be silenced – who become the vanguard of accountability and change," Moms for Liberty cofounder Tiffany Justice said. She and Tina Descovich founded the group after leaving the Brevard school board.

Lawyers for Brevard Public Schools didn't respond to Just the News queries for their next steps.

The good news for IFS countered the bad news it got the same day in a lawsuit to block a ban on silent protest against male participation in girls' sports in a New Hampshire school district. 

U.S. District Judge Steven McAuliffe mostly rejected an emergency temporary restraining order IFS sought at a Tuesday hearing. On Wednesday the judge scheduled two days of evidentiary hearings in the Bow School District case for just before Thanksgiving, the docket shows.

Regulating public comments by viewpoint at government meetings, especially criticism of policies on COVID, race and gender identity, has been a recurring feature of civic life in recent years. IFS won an early injunction against a Pennsylvania school district's comment practices shortly after filing the Brevard suit in fall 2021, which targeted similar restrictions.

Censorship wasn't limited to government actions, with YouTube taking down entire recordings of public meetings when the platform determined commenters had shared alleged misinformation.

"The government has relatively broad power to restrict speech in limited public forums – but that power is not unlimited," Grant concluded. "Speech restrictions must still be reasonable, viewpoint-neutral, and clear enough to give speakers notice of what speech is permissible," and all three challenged policies fail in some way.

Like Bow School District forcing parents to move to a newly designated "protest zone" at soccer games if they want to wear "XX" wristbands opposing its transgender sports policy, the Brevard board changed its policy during litigation, letting public speakers "address their comments to the Board as a whole, the presiding officer, or to an individual Board member."

But the ruling says the revised policy still fails because it continues letting the presiding officer "interrupt remarks that are personally directed to anyone outside these three categories."

"Belford’s own inability to define the policy that she was tasked with enforcing speaks volumes," Grant wrote. "The track record of this policy’s enforcement mirrors Belford’s muddled definition," showing she defined it as naming someone "at least as a baseline" but that "several times ... speakers were interrupted for personally directed speech" that didn't name anyone "at all." 

The three-judge panel, including Democratic nominee Wilson, rebuked the trial court for throwing out the suit on the grounds that the group's members do not have an "objectively reasonable" fear of legal injury from the board, and hence lack standing to sue.

They "easily" have standing for nominal damages by alleging unconstitutional censorship in the past, Grant wrote. 

The board's argument that the chapter members' ongoing self-censorship is not reasonable, and hence unavailable for prospective relief, is "borderline frivolous," the opinion says.

"Belford herself warned attendees prior to meetings" they could be fined $500 and go to jail for two months if they "cause a disruption" in the chair's view, and the members have been cut off before finishing several times and even been expelled, Grant wrote.

The majority rejected the school board's insistence that the court cannot consider more than the "five occasions" in which chapter members were themselves "interrupted or removed from meetings," saying that enforcement against "similarly situated speakers" is relevant to whether policies will be applied to plaintiffs and they are chilled as a result.

Belford, who was unseated by a Gov. Ron DeSantis-endorsed challenger two years ago, testified that the purpose of the rules she enforced was to stop "incitement of other audience members in a manner that would create an unsafe situation or one that may adversely impact children."

But she "seldom gave speakers a contemporaneous explanation for why she interrupted or silenced them" related to the policies, which allegedly encouraged parents to self-censor or not speak, Grant wrote. Belford's reasoning in "retrospective explanations" during litigation "often relied on a combination of the policies."

She changed the "common understanding" of abusive comments by deeming anything "unacceptable" as a violation, cutting off speakers who said the board's COVID masking policy was a "ploy to silence our opposition to this evil LGBTQ agenda" and even quoting the "insults leveled at her [the speaker] by protestors outside the Board meeting."

A ban on being called "evil" is based on viewpoint and "effectively requires 'happy-talk'" from public commenters to avoid suppression, Grant wrote. "And if the only ideas that can be communicated are views that everyone already finds acceptable, why have the school board meetings in the first place?"