Some of the parents who object to some of the books in the school library have chosen to read passages from these books during the public comment portion of the school board meeting. For example, Alison Hair read from “Extremely Loud and Incredibly Close” at the board meeting in Forsyth County, Georgia. She didn’t get very far. As she read from this book, it went like this:
“I know that you give someone a blow job by putting your penis….”
That’s when the gavel came down.
This and other incidents led to litigation with the colorful name of Mama Bears of Forsyth County v. McCall. There is a lot to unpack in the court’s decision, but for today I’m just going to comment on the district’s effort to keep things civil and polite. The policy about public comment at the board meetings included this:
Speakers are asked to keep their remarks civil. The use of obscene, profane, physically threatening or abusive remarks will not be allowed. Loud and boisterous conduct or comments by speakers or members of the audience are not allowed.
Let’s review how the court looked at each component of that.
KEEP IT CIVIL, PLEASE. The court was OK with this as an aspirational goal. The policy did not demand civility, it just asked for it. So far so good. However, in reviewing the evidence, the court found that the standard was not applied properly. It looked to the court like the board applied the “civility standard” when speakers chose to criticize the board. That’s not OK. Accepting praise and barring criticism under the guise of “civility” is viewpoint discrimination.
OBSCENITY. The court noted that obscenity is not protected under the First Amendment, so it was permissible for the board to prohibit obscene speech during public comment. However, the court cautioned that this can only be applied to material that meets the Supreme Court’s strict definition of what is “obscene.” That definition would surprise a lot of school board presidents.
PROFANITY. This is the most interesting part of the court’s decision. The court notes that restrictions on profanity are “content-based.” That means they will be OK as long as they are “reasonable and viewpoint-neutral.” The court then noted the lack of definition of the term, and the inherent subjectivity of it. Then concluded:
Had the Board qualified the language to restrict profane remarks or profanity that was actually disruptive of the Board’s business, that might have been a different story. But it did not, and as written, it cannot stand.
The board argued that reading sexually explicit excerpts from books amounted to “profanity,” but the court didn’t buy it. The court cited several cases suggesting that the board could prohibit sexually explicit material at a board meeting, but then observed that “nowhere in the public participation policy is that term [sexually explicit] used. Rather, the term ‘profane’ is used without further definition.”
That sounds like an invitation to school board attorneys to modify public participation policies in a way that specifically bars speech that is sexually explicit or graphic. After all, there are often young children at the meeting.
ABUSIVE REMARKS. The court held that the district could not categorically bar remarks that are disrespectful or even abusive, while acknowledging that boards can prohibit the use of “hateful racial epithets.”
LOUD OR BOISTEROUS. This portion of the policy was similar to the part about civility. It’s OK to prohibit loud or boisterous behavior that disrupts the board meeting, but again, this has to be applied evenly. In the one instance under consideration the court noted that it seemed that the board chair acted reasonably.
Mama Bears of Forsyth County v. McCall was decided by the federal court for the Northern District of Georgia on November 16, 2022. It’s at 2022 WL 18110246.
DAWG BONE: MANY BOARD MEMBERS LONG FOR THE DAYS WHEN BOARD MEETINGS WERE BORING.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Read those emails!