Amicus Brief: Moms for Liberty v. Brevard Public Schools
The Brevard County (Fla.) chapter of Moms for Liberty and several of its members sued Brevard Public Schools over its speech policy governing public comment at board meetings. Specifically, Moms for Liberty challenged the rule against “abusive” speech (which lacks meaning); the rule against “personally directed” speech, which in practice prohibited criticizing the board members or school officials by name; and the practice of interpreting the ban on “obscene” speech to bar parents from reading racy school library books at the meetings. The Sixth Circuit struck down an identical “abusive” speech prohibition governing public comment at school board meetings in 2021.
The district court was, to say the least, hostile to the case, denying the motion for preliminary injunction and finding that the complaint was formatted as a so-called “shotgun” pleading. The court dismissed with prejudice the facial First Amendment challenges for failing to state a claim. Plaintiffs then lost an appeal from the denial of the preliminary injunction, but the three-judge panel appeared to recognize that it was on shaky ground in creating a circuit split and limiting the Supreme Court’s offensive-speech doctrine, particularly given the Eleventh Circuit’s own precedent applying those cases in an academic setting. So, the panel affirmed in a short unpublished opinion, stating only that the denial of the preliminary injunction was not an abuse of discretion. On remand, the district court granted summary judgment to the school board, even though the board chair testified that she censored speech whenever she felt that it would offend members of the audience and thereby risk a negative reaction.
The Institute for Free Speech has appealed again on behalf of Moms for Liberty, this time from both the summary judgment and the now-final earlier order dismissing most of plaintiffs’ claims. MI joined the Foundation for Individual Rights and Expression (FIRE) on a brief supporting Moms for Liberty and arguing that local authorities should not be able to use unconstitutional “decorum” policies to shut down criticism at public hearings.
Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
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