Sixth Circuit tests free speech limits at Tennessee school board meetings

CINCINNATI (CN) — A “parental empowerment” group argued before an appeals court panel Tuesday that a county school board violates residents’ constitutional rights with meeting rules that silence criticism and require invasive disclosures.

Moms for Liberty, a nonprofit founded by Tiffany Justice and Tina Descovich, sued the Wilson County, Tennessee, board of education in 2023 to challenge the procedural rules.

Although meetings are open to the public, any speaker must publicly disclose his or her address before making a comment, and no comments deemed “abusive” toward the board or its members are allowed. In addition, if an attendee wants to comment on an issue that’s not on the meeting agenda, the board has the discretion to deny the request if it deems the remarks will not be in the “public interest.”

U.S. District Judge Eli Richardson in January denied the group’s request for a preliminary injunction, disposed of its challenge to the “public interest” provision and refused to enjoin the address disclosure and abusive comment rules after the board removed the provisions from its list of meeting policies — a change the board says moots a portion of the lawsuit.

In its appeal to the Sixth Circuit, the Wilson County chapter of Moms for Liberty accused the board of “quickly revising” portions of its policies to avoid any action by the lower court and claims there have been no substantive procedural changes to board meetings.

“The board meets none of the relevant factors for establishing mootness by way of voluntary cessation, as its hurried revisions to its policies and practices only highlight how easy it is to write and rewrite its rules,” the group said in its brief.

The board lamented the descent of governmental meetings into “utter anarchy” in recent years, emphasizing in its brief to the appeals court the necessity of “guardrails” to allow it and other legislative bodies to work without threatening or abusive behavior from constituents.

Attorney Brett Nolan from the Washington, D.C., Institute for Free Speech argued Tuesday on behalf of Moms for Liberty and told the appeals panel the First Amendment guarantees a parent’s right to criticize a school board.

“Harsh and critical speech is not anarchy,” he said.

U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, questioned Nolan about the possible reinstatement of the address and abusive comment rules.

“It’s your burden in a preliminary injunction case to prove the board will reinstate the rules. What proof is there that they will reinstate them during this case?” Murphy asked.

“The chair herself said these rules can be flipped at any time,” the attorney said.

U.S. Circuit Judge Jane Stranch, a Barack Obama appointee, was skeptical of the claims made by the Moms for Liberty and pointed out the individual plaintiffs in the case have routinely made comments at board meetings.

“Your argument is that your clients can’t make the most disparaging comments they want to?” she asked. “How do you ever pin down that rule, if every time you go, you are able to speak?”

“They want to speak very harshly but self-censor because if you are cut off by the board, you’re done,” Nolan said.

Attorney Christopher Hayden of the Jackson, Tennessee, firm Sellers, Craig, and Hayden, argued on behalf of the board and its members. The panel asked him immediately about the language of the “public interest” rule.

U.S. Circuit Judge Amul Thapar, a Trump appointee, asked Hayden about the broad scope of the requirement.

“The war in Israel is in the public interest; illegal immigration is in the public interest,” Thapar said. “You can’t just have a vague phrase and then pick and choose what you want to hear.”

Hayden admitted the policy could be “better drafted” but defended the board’s decision to keep it intact. “We believe the rule is constitutionally defensible,” he told the panel. “It is a relevancy requirement and nothing more.”

In response to his opposing counsel’s remarks about the possible reinstatement of the address and abusive comment rules, Hayden pledged to the court his clients would not change course.

“There is no gamesmanship here. The board is just fine without those two rules,” he said.

Stranch questioned each attorney about the possibility of mediation and urged them to consider settling the matter out of court when both seemed amenable to the idea.

No timetable has been set for the court’s decision.

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