Moms for Liberty - Brevard County, FL v. Brevard Public Schools
U.S. Court of Appeals for the Eleventh Circuit
Moms for Liberty - Brevard County, FL v. Brevard Public Schools, 118 F.4th 1324 (11th Cir. 2024)
Moms for Liberty - Brevard County, FL v. Brevard Public Schools
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10656
____________________
MOMS FOR LIBERTY - BREVARD COUNTY, FL,
AMY KNEESSY,
ASHLEY HALL,
KATIE DELANEY,
JOSEPH CHOLEWA,
Plaintiffs-Appellants,
versus
BREVARD PUBLIC SCHOOLS,
MISTY HAGGARD-BELFORD,
Chair, Brevard County School Board
in her individual capacity,
MATT SUSIN,
Vice Chair, Brevard County School Board
in his official and individual capacities,
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2 Opinion of the Court 23-10656
CHERYL MCDOUGALL,
Member, Brevard County School Board
in her official and individual capacities,
KATYE CAMPBELL,
Member, Brevard County School Board
in her official and individual capacities, et al.,
Defendants-Appellees,
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-01849-RBD-DAB
____________________
Before WILSON, GRANT, and LAGOA, Circuit Judges.
GRANT, Circuit Judge:
For many parents, school board meetings are the front lines
of the most meaningful part of local government—the education
of their children. And sometimes speaking at these meetings is the
primary way parents interact with their local leaders or
communicate with other community members. No one could
reasonably argue that this right is unlimited, but neither is the
government’s authority to restrict it.
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A group called Moms for Liberty brought this lawsuit on
behalf of members who say their speech was chilled and silenced
at Brevard County School Board meetings. According to the
Board’s presiding officer, their comments were “abusive,”
“personally directed,” “obscene,” or some combination of the
three. Because the first prohibition was viewpoint based, the
second was both unreasonable and vague, and the application of
the third was (at a minimum) unreasonable, these policies are
unconstitutional. The district court erred by granting summary
judgment to Brevard Public Schools.
I.
The Brevard County School Board, recognizing “the value
to school governance of public comment,” allows members of the
public to speak for up to three minutes during designated portions
of its meetings. During the events leading up to this lawsuit, the
Board enforced a variety of other rules too, a few of which are
relevant here. The first was that “no person may address or
question Board members individually,” so speakers were allowed
to direct their comments only “to the presiding officer.” 1 Another
policy barred statements that were “too lengthy, personally
1 While this litigation was pending, the Board revised the policy banning “per-
sonally directed” comments. Now “public speakers may address their com-
ments to the Board as a whole, the presiding officer, or to an individual Board
member.” Brevard Sch. Bd. Policy Manual § 0000 Bylaws, Code po0169.1 ¶ E
[https://perma.cc/27TZ-93XN]. But the presiding officer may still interrupt
remarks that are personally directed to anyone outside these three categories.
Id. ¶ H(1). All other relevant policies remain unchanged.
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directed, abusive, obscene, or irrelevant.” Then-Board Chair Misty
Haggard-Belford enforced these rules, and she testified that their
general purpose was to maintain decorum and prevent “the
incitement of other audience members in a manner that would
create an unsafe situation or one that may adversely impact
children.”
For their part, the plaintiffs assert that Belford’s pattern of
enforcement was confusing at best, with the same kinds of speech
silenced on some days but not on others, and some speakers
interrupted for reasons that did not match up with what they were
saying. Belford seldom gave speakers a contemporaneous
explanation for why she interrupted or silenced them, at least not
one that was tethered to the language in the participation policies.
Rather, in preparation for this litigation Belford provided
retrospective explanations for her enforcement decisions. Even
still, her reasoning often relied on a combination of the policies.
Because of the uneven and unpredictable enforcement history,
these parents contend that they have been pressured to self-censor
their comments or avoid speaking at all.
Moms for Liberty, along with several individual members,
filed a lawsuit seeking declaratory and injunctive relief, along with
nominal damages, against the Brevard Public Schools and members
of Brevard County School Board. 2 These plaintiffs assert that the
2 For ease of reference, we will collectively refer to the plaintiffs as Moms for
Liberty and the defendants as “the Board.”
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prohibitions against personally directed and abusive speech violate
the First Amendment, both facially and as applied. They also
challenge the prohibition on obscene speech as applied. And they
say all three categorical prohibitions are void for vagueness. Moms
for Liberty moved for a preliminary injunction against the policies’
enforcement, which the district court denied. The group then
moved to stay further proceedings pending the outcome of its
appeal from that denial. That request was also denied. In an
unpublished decision, this Court summarily affirmed the denial of
the preliminary injunction. Moms for Liberty v. Brevard Pub. Schs.,
No. 22-10297, 2022 WL 17091924 (11th Cir. Nov. 21, 2022)
(unpublished).
The district court ultimately granted the Board’s motion for
summary judgment. It first concluded that Moms for Liberty did
not have standing because neither the organization nor its
members could show that they had suffered an injury that was
“actual or imminent.” The Board’s rules did not objectively chill
their protected speech, the court held, because some members
continued to speak at meetings and the Board Chair’s interruptions
were of minimal consequence to them.3 Ordinarily that is where
things would (and should) have ended, at least as far as the district
court was concerned—if a party lacks standing, the court has no
jurisdiction to decide the merits. See Murthy v. Missouri, 144 S. Ct.
1972, 1985 (2024). Even so, the district court here went on to
3 The district court did not consider whether the plaintiffs had standing for
harms they had already suffered.
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conclude that the Board’s policies and enforcement practices were
constitutional. This appeal followed.
II.
We review a grant of summary judgment de novo. Smith v.
Owens, 848 F.3d 975, 978 (11th Cir. 2017). Summary judgment is
appropriate when, drawing all inferences in the light most
favorable to the nonmoving party, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Del Castillo v. Sec’y, Florida Dep’t of Health, 26 F.4th
1214, 1219 (11th Cir. 2022) (quoting Fed. R. Civ. P. 56(a)).
III.
We first consider standing. As it did below, the Board
contends that Moms for Liberty lacks standing to challenge the
Board’s policies because its members do not have a credible threat
of impending injury—their fear, the Board says, is not “objectively
reasonable.” Any threat of interruption or removal from meetings
on account of these policies, the Board argues, is too minimal to
really have had a chilling effect. And, the Board says, Moms for
Liberty has failed to show any past injuries from the Board’s
enforcement actions. We disagree.
To begin, we recognize that Moms for Liberty has requested
both retrospective relief in the form of nominal damages and
prospective relief in the form of an injunction against future
enforcement of the challenged policies against its members.
Because “standing is not dispensed in gross,” Moms for Liberty
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must demonstrate standing for each of these forms of relief.
TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). 4
As for its claims for nominal damages, this requirement is
easily satisfied. Under § 1983, the provision under which Moms for
Liberty has brought this suit, nominal damages are available when
a plaintiff alleges that its constitutional rights were violated. See
Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1177 (11th Cir. 2009).
Because several members have alleged that they were
unconstitutionally censored at meetings by the enforcement of the
Board’s policies, Moms for Liberty and its members have standing
to seek nominal damages to redress those violations.
When it comes to standing for prospective relief in First
Amendment cases like this one, the “injury requirement is most
loosely applied” because of “the fear that free speech will be chilled
even before the law, regulation, or policy is enforced.” Hallandale
Pro. Fire Fighters Loc. 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th
Cir. 1991). So long as plaintiffs are “chilled from engaging in
4 Under current Supreme Court doctrine, Moms for Liberty as an organization
has standing to vindicate the rights of its members when: “(a) its members
would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Students for Fair Admissions, Inc. v. President & Fellows
of Harvard Coll., 600 U.S. 181, 199 (2023) (quotation omitted). The Board does
not challenge the latter two requirements, so to determine whether Moms for
Liberty has standing, the question is whether any individual Moms for Liberty
members would have standing to sue on their own. Of course, several indi-
vidual members have also sued here.
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constitutional activity,” they have suffered a discrete harm that
meets Article III’s injury requirement. Speech First, Inc. v.
Cartwright, 32 F.4th 1110, 1120 (11th Cir. 2022) (quotation omitted).
When there is a danger of self-censorship, “harm can be realized
even without an actual prosecution.” Wollschlaeger v. Governor,
Florida, 848 F.3d 1293, 1305 (11th Cir. 2017) (en banc) (quotation
omitted). So the plaintiffs have standing to seek prospective relief
if the “operation or enforcement” of the Board’s policies “would
cause a reasonable would-be speaker to self-censor.” Speech First,
32 F.4th at 1120 (alteration adopted and quotations omitted).
The Board’s argument that Moms for Liberty—not to
mention the individual plaintiffs—cannot meet this standard is
borderline frivolous. Several members who are individual plaintiffs
have credibly alleged that they have already self-censored their
speech at Brevard County School Board meetings because of the
Board’s policies, and that a reasonable person in their shoes would
have done the same. After all, the consequences could be severe.
As Belford herself warned attendees prior to meetings, those who
“cause a disruption” could be subject to criminal sanctions, “up to
60 days in jail and a $500 fine.” The plaintiffs also claim that they
have witnessed the Board interrupt and berate speakers—including
other Moms for Liberty members—for violating the policies.
Joseph Cholewa asserted that he writes his speeches on “pins and
needles” because he knows he needs to be “very selective” with his
words to avoid interruption or removal; in fact, he has been
prevented from finishing his comments several times. Ashley Hall
said that she is “more careful” about what she says at meetings
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because she is “afraid that criticizing Defendants will be deemed a
‘disruption,’” and that she “will be prosecuted.” And Amy Kneessy
revealed that she avoids speaking altogether because she wishes to
speak about individual staff members and the programs they are
implementing in Brevard Public Schools, but she fears that these
comments would lead to her being “chastised, criticized, or
silenced.” At least one member has even been expelled from a
Board meeting. We have no trouble concluding that the operation
of the Board’s policies governing participation in the public
comment portions of their meetings objectively chills expression.
We also need to address two other antecedent issues—both
relating to the scope of the record. The Board insists that we must
confine our review to the five occasions during the relevant time
period when Moms for Liberty members themselves were
interrupted or removed from meetings. We reject that
contention—the Board’s proposed limitation is artificial and
unwarranted. Enforcement acts against similarly situated speakers
are relevant, both to whether the policies will be applied to Moms
for Liberty members and to whether their speech is chilled as an
effect. See 303 Creative LLC v. Elenis, 600 U.S. 570, 581–83, 588 (2023).
We decline to limit our review based on the identity of the
thwarted speaker.
We do, however, limit the record in a different respect.
Moms for Liberty’s briefing points out several episodes from 2022.
A few involved restricting speech—one speaker was interrupted
before she could begin reading an excerpt from a sexually
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suggestive library book, and another was interrupted for personally
directed speech relating to a former teacher showing his penis to a
student. The third example went in the other direction—Belford
allowed a teacher to speak without interruption despite addressing
school administrators by name. But however probative these
examples may have been, the district court struck them from the
amended complaint, saying they postdated the filing of the
litigation and would inappropriately broaden the scope of the case.
Because Moms for Liberty did not appeal that decision, the
additional evidence is outside the scope of our review and we do
not consider it.
IV.
We now turn to the merits of the appeal. We agree with the
parties that the school board meetings here qualify as limited public
forums because they are created “for certain groups or for the
discussion of certain topics.” McDonough v. Garcia, --- F.4th ---, No.
22-11421, 2024 WL 4195557, at *3, *6–7 (11th Cir. Sept. 16, 2024)
(en banc) (quotation omitted). The Brevard County School Board
meetings are for parents and community members to “express
themselves on school matters of community interest.” In a limited
public forum, the government’s restrictions on speech “must not
discriminate against speech on the basis of viewpoint,” and “must
be reasonable in light of the purpose served by the forum.” Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001) (quotation
omitted).
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The First Amendment generally “forbids the government to
regulate speech in ways that favor some viewpoints or ideas at the
expense of others.” Otto v. City of Boca Raton, 981 F.3d 854, 864
(11th Cir. 2020) (emphasis omitted) (quoting Members of the City
Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). Indeed,
though the Supreme Court has never categorically prohibited
restrictions based on viewpoint, it has come close: “Discrimination
against speech because of its message is presumed to be
unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of
Virginia, 515 U.S. 819, 828(1995); see also Taxpayers for Vincent,466 U.S. at 804
. Viewpoint discrimination is thus “the greatest First
Amendment sin.” Honeyfund.com Inc. v. Governor, Florida, 94 F.4th
1272, 1277 (11th Cir. 2024). That constitutional constraint holds in
limited public forums, meaning that the “government must abstain
from regulating speech when the specific motivating ideology or
the opinion or perspective of the speaker is the rationale for the
restriction.” Rosenberger, 515 U.S. at 829.
The reasonableness inquiry, on the other hand, is more
flexible and context specific, and will depend on the nature and
purpose of the forum. McDonough, 2024 WL 4195557, at *6;
Bloedorn v. Grube, 631 F.3d 1218, 1231 (11th Cir. 2011). To pass
muster, such purpose-based restrictions must be “wholly consistent
with the government’s legitimate interest in ‘preserving the
property for the use to which it is lawfully dedicated,’” and
prohibited speech must be “‘naturally incompatible’ with the
purposes of the forum.” Cambridge Christian Sch., Inc. v. Florida
High Sch. Athletic Ass’n, Inc., 942 F.3d 1215, 1244–45 (11th Cir. 2019)
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(alterations adopted and ellipsis omitted) (first quoting Perry Educ.
Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 50–51 (1983); and
then quoting Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 690–91 (1992) (O’Connor, J., concurring)). So what is
reasonable in one forum may not be reasonable in another. “[T]he
purpose of a university,” for example, “is strikingly different from
that of a public park.” Bloedorn, 631 F.3d at 1233–34. And a speech
restriction in a limited public forum “need not be the most
reasonable” or even “the only reasonable limitation.” Christian
Legal Soc’y Chapter of the Univ. of California, Hastings Coll. of the L. v.
Martinez, 561 U.S. 661, 692 (2010) (quotation omitted). But flexible
is not the same thing as nonexistent—though reasonableness is a
“forgiving” test, it is not a blank check. Minnesota Voters All. v.
Mansky, 585 U.S. 1, 17 (2018).
In fact, even restrictions that pursue legitimate objectives
can be unlawful if their enforcement cannot be “guided by
objective, workable standards.” Id. at 21. After all, an
“indeterminate prohibition carries with it the opportunity for
abuse,” particularly when that prohibition “has received a virtually
open-ended interpretation.” Id. (alteration adopted and quotation
omitted). So a policy is unreasonable if it “fails to define key terms,
lacks any official guidance, and vests too much discretion in those
charged with its application.” Young Israel of Tampa, Inc. v.
Hillsborough Area Reg’l Transit Auth., 89 F.4th 1337, 1347 (11th Cir.
2024). At the very least, the government “must be able to articulate
some sensible basis for distinguishing what may come in from what
must stay out.” Mansky, 585 U.S. at 16. But a “grant of
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unrestrained discretion to an official responsible for monitoring
and regulating First Amendment activities is facially
unconstitutional.” Atlanta J. & Const. v. City of Atlanta Dep’t of
Aviation, 322 F.3d 1298, 1310 (11th Cir. 2003). The government, in
short, must avoid enforcement that is “haphazard and arbitrary.”
Cambridge Christian Sch., 942 F.3d at 1243. 5
Moms for Liberty challenges each of the policies as applied
to its members, and it challenges the prohibitions on “abusive” and
“personally directed” speech as facially invalid too. An as applied
challenge is just what it sounds like—we ask whether the policy
was or can be constitutionally applied to the plaintiffs’ protected
activity. See Jacobs v. Florida Bar, 50 F.3d 901, 906 (11th Cir. 1995);
CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270–71
(11th Cir. 2006). In a facial challenge, by contrast, the plaintiff
“seeks to invalidate a statute or regulation itself.” United States v.
Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000). Facial challenges are
ordinarily disfavored and are generally harder to win. See Moody v.
NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024). In First Amendment
facial challenges, the question is whether “a substantial number of
the law’s applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Id. (alteration adopted and
quotation omitted).
5 Moms for Liberty also argues that the prohibitions on “abusive” and “per-
sonally directed” speech are unconstitutionally vague. Because we find that
these policies are unconstitutional on other grounds, we have no need to reach
that issue.
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In the context of the “reasonableness” analysis specifically,
our Court has explained that a law or policy found to be
constitutionally unreasonable “due to lack of standards and
guidance is by definition facially invalid.” Young Israel, 89 F.4th at
1350. That is because whether a policy is “incapable of reasoned
application” does not depend on the speaker’s identity or the
message they wish to convey, but on “the vagueness and
imprecision” of the policy “in a vacuum.” Id. at 1351 (quotation
omitted). Thus, a policy that is invalid for those reasons is
necessarily invalid in all of its applications.
In sum, in a First Amendment case like this one—involving
a limited public forum—the government’s rules must be viewpoint
neutral and reasonable.
V.
Moms for Liberty challenges three Board policies: the rule
against “abusive” speech, the rule against “personally directed”
speech, and the rule against “obscene” speech. For each one, a
simple look at the written policy yields an incomplete picture. But
the Board’s explanation of its policies, as well as its record of
enforcement, fill in the blanks—revealing serious constitutional
problems.
A.
We start with the policy permitting the Board’s presiding
officer to interrupt speech seen as “abusive.” The way that Board
Chair Belford interprets and enforces the rule diverges from the
common understanding of the word “abusive.” As enforced, the
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policy bars using terms that people generally agree are
“unacceptable.”
Because the Board’s policies for public participation do not
offer any meaning for the term “abusive,” we start by looking at
dictionaries, which define it to mean “using harsh, insulting
language,” and “habitually cruel, malicious, or violent; esp., using
cruel words or physical violence.” Abusive, Merriam-Webster,
[https://perma.cc/B9RH-TFWC]; Abusive, Black’s Law Dictionary
(11th ed. 2019). Belford initially explained “abusive” in a way that
was at least directionally similar to these definitions: “yelling,
screaming, profanity, those sorts of things.”
Fair enough—but that is not where she landed. When asked
to give her own definition, the one used to enforce the policy in
Board meetings, Belford could not do so. At least at first—she
eventually elaborated on her initial definition, explaining that
speech would be abusive if “someone were yelling, screaming,
cussing, you know, calling people names.” Expanding on that last
element, Belford said the policy would prohibit calling people
“names that are generally accepted to be unacceptable.” That
definition is constitutionally problematic because it enabled Belford
to shut down speakers whenever she saw their message as
offensive.
The record of enforcement supports the contention that this
was the operative definition. At one meeting, for example, she
interrupted a speaker who criticized the Board’s Covid-19 masking
policy as a “simple ploy to silence our opposition to this evil
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LGBTQ agenda.” Belford quickly stopped the speaker, who had
not yelled, screamed, or otherwise caused a disruption. In her
affidavit, Belford explained that she interrupted him because his
“characterization of people as ‘evil’ was abusive.”
Belford interrupted another speaker who was criticizing the
Board’s policies on gender in school bathrooms and school-
sponsored sports. According to Belford, the speaker had engaged
in abusive “name-calling” by referring to the “liberal left.” Yet
another speaker was interrupted for repeating insults leveled at her
by protestors outside the Board meeting. In stopping her, Belford
contended that the speaker had improperly repeated words that
were abusive to the speaker herself.
No one likes to be called evil, but it is not “abusive” to use
that term. Restrictions that bar offensive or otherwise unwelcome
speech are impermissible, regardless of the forum in which the
government seeks to impose them. A prohibition on all offensive—
or “unacceptable,” as Belford put it—speech may appear neutral.
After all, it prohibits a speaker from saying anything offensive
about any person or any topic. But “[g]iving offense is a
viewpoint.” Matal v. Tam, 582 U.S. 218, 243 (2017) (plurality
opinion); see also Iancu v. Brunetti, 588 U.S. 388, 396 (2019). And a
restriction barring that viewpoint effectively requires “happy-talk,”
permitting a speaker to give positive or benign comments, but not
negative or even challenging ones. Matal, 582 U.S. at 246 (plurality
opinion); id. at 249 (Kennedy, J., concurring in part and concurring
in the judgment). And if the only ideas that can be communicated
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are views that everyone already finds acceptable, why have the
school board meetings in the first place? A state cannot prevent
“both willing and unwilling listeners from hearing certain
perspectives,” because “for every one person who finds these
viewpoints offensive, there may be another who welcomes them.”
Honeyfund.com, 94 F.4th at 1282.
To say that a government may not burden speech simply
because some listeners find it unacceptable is nothing new. Indeed,
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 their hearers.” Street v. New
York, 394 U.S. 576, 592(1969); see also Texas v. Johnson,491 U.S. 397, 414
(1989). The government has no authority to curtail the sphere
of acceptable debate to accommodate “the most squeamish among
us.” Cohen v. California, 403 U.S. 15, 25 (1971). Instead, we expect
listeners to judge the content of speech for themselves. The
government is ill-equipped in any event to decide what is or is not
offensive. Id. Enduring speech that irritates, frustrates, or even
offends is a “necessary cost of freedom.” Sorrell v. IMS Health Inc.,
564 U.S. 552, 575 (2011). 6
6 The only other circuit court to consider a similar policy has reached the same
conclusion. Considering another school board policy prohibiting “abusive”
speech, the Sixth Circuit likewise concluded that the term “abusive”—at least
as defined by the Board—operated to “prohibit speech purely because it dis-
parages or offends,” in violation of the longstanding principle that “the gov-
ernment may not censor speech merely because it is ‘offensive to some.’” Ison
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To be sure, a different policy—one prohibiting viewpoint-
neutral characteristics of speech, for example, or explicitly and
narrowly defining “abusive”—could be constitutional. But here,
the ban on “abusive” speech is an undercover prohibition on
offensive speech. Because the government “may not burden the
speech of others in order to tilt public debate in a preferred
direction,” the Board’s policy on “abusive” speech is facially
unconstitutional. Id. at 578–79.
B.
We next consider the Board’s prohibitions on “personally
directed” speech. Both policies were in effect during all of the
events relevant to this lawsuit. Now, one has been changed and one
remains on the books. The first disallowed addressing or
questioning Board members individually, requiring instead that all
statements be directed to the presiding officer; this restriction was
repealed shortly after this appeal was filed. The other rule, which
remains in effect, allows the presiding officer to stop a speaker
when her remarks are “personally directed” at anyone not on the
Board. We consider each policy.
1.
We start with the first—the policy that prohibited speakers
from addressing Board members individually. The Board argues
that all of Moms for Liberty’s arguments against the personally
v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887, 894 (6th Cir. 2021) (quoting
Matal, 582 U.S. at 244 (plurality opinion)).
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directed prohibition are moot because the old policy is gone. No
such luck. Though prospective relief barring enforcement of the
pre-amendment policy is no longer available, nominal damages for
past harms are. That means the claim is still live: “a request for
nominal damages saves a matter from becoming moot as
unredressable when the plaintiff bases his claim on a completed
violation of a legal right.” Keister v. Bell, 29 F.4th 1239, 1251 (11th
Cir. 2022); see also Uzuegbunam v. Preczewski, 592 U.S. 279, 292
(2021).
With that out of the way, we consider whether the policy
prohibiting speakers from addressing individual Board members
was viewpoint neutral and reasonable in light of the meetings’
purpose. Mansky, 585 U.S. at 13. Based on the record here, we do
not see evidence of viewpoint-based discrimination. So the only
question is whether the policy was reasonable. It was not.
The reasonableness test, as we have explained, asks in part
whether a restriction on speech is enforced in an arbitrary or
haphazard way. Cambridge Christian Sch., 942 F.3d at 1240. Asking
if the Board’s approach to this policy was “haphazard” is like asking
if the sky is blue—enforcement was so inconsistent that it is
impossible to discern the standard used to assess which speech was
permitted at any given meeting.
At some meetings, speakers were allowed to address Board
members by name to give them thanks and praise. Offering
thanks, however, was not always a shield; one speaker was
interrupted when she tried to thank a Board member for his
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20 Opinion of the Court 23-10656
positive impact on her daughter. And at another meeting, Belford
cut off a Moms for Liberty member who tried to personally thank
a Board member.
On yet another occasion, Belford said nothing when a local
high school student addressed one Board member by name while
advocating for her theater group to rehearse in the school’s indoor
facilities. But when a Moms for Liberty member questioned how
he, as a parent, could “stand up for District Two” while having to
watch the Board member for that district “behind a plastic prison”
(referring to a plexiglass barrier in place during the Covid-19 era),
Belford and another Board member interrupted him for calling out
one of the Board members and informed him that he could not talk
to or about his specific representative.
This kind of inconsistent enforcement is exactly what this
Court and the Supreme Court have warned against. See Mansky,
585 U.S. at 16–22; Young Israel, 89 F.4th at 1347–49. Permitting
certain speech on some days and not on others without “any
credible explanation of what may have changed is the essence of
arbitrary, capricious, and haphazard—and therefore
unreasonable—decisionmaking.” Cambridge Christian Sch., 942 F.3d
at 1244. For that reason, we agree with Moms for Liberty that the
now-repealed prohibition against addressing individual Board
members was unconstitutionally applied.
2.
Turning to the current policy, we consider whether
disallowing speech that is “personally directed” can stand as
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23-10656 Opinion of the Court 21
reasonable. As with the prohibition on “abusive” speech, the
Board’s policy does not define “personally directed.” Belford first
described it as “[a]nything that’s directed at a person.” But when
pressed for more, she suggested that the policy prohibited speech
naming an individual, possibly (but not always) coupled with some
sort of personal information about that person. One refrain that
Belford repeated in her testimony was that the applicability of the
policy “would depend on the circumstances.”
Belford followed up with various examples. She explained
that “if someone is saying to me, ‘My friend Susie’s son has an IEP
for this,’ yes, I’m going to stop them because they’re sharing
someone else’s information that shouldn’t be public information.”
But if the speaker just said “‘my daughter’s friend said that this
occurred in school,’ and there’s no name, that’s a different
situation.” Just mentioning a name, however, might not be
enough: “So if you’re saying your wife’s name and you’re just
mentioning her name, I don’t know that I could consider that
personally directed. If you’re saying, ‘My friend John was raped by
someone or my’—you know what I mean?” Respectfully, we do
not.
Belford’s own inability to define the policy that she was
tasked with enforcing speaks volumes. The track record of this
policy’s enforcement mirrors Belford’s muddled definition.
Sometimes just mentioning someone’s name was enough to
provoke interruption, but other times using a name was met with
no resistance. At one meeting, for example, speakers advocating
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22 Opinion of the Court 23-10656
for the rehiring of two coaches were interrupted for naming the
coaches and were told to refer to them as “these coaches” instead.
But at another meeting, multiple speakers were allowed to address
and thank the Superintendent by name throughout the meeting.
Even though Belford’s definition seemed to require, at least
as a baseline, that a speaker use someone’s name to violate this
policy, the record reflects several times when speakers were
interrupted for personally directed speech even though they did
not name anyone—at all. Nor did they direct their speech toward
anyone in particular. At one meeting, for example, Belford
interrupted a speaker who gestured toward one side of the room
and said “I keep hearing this side talk about freedom and their
choices.” This reference, Belford said, violated the policy against
personally directed speech. And at yet another meeting, Belford
interrupted yet another comment she said was “personally
directed”: “The sad fact is that all children do not live with
accepting and affirming families. Can you imagine the LGBTQ
student who may live with families such as those who were here at
the last meeting?” Again, no names.
As these examples illustrate, enforcement of this policy was
as inconsistent as the definitions offered to support it. The Board
has not articulated any “sensible basis for distinguishing what may
come in from what must stay out.” Mansky, 585 U.S. at 16. Such
unpredictable and haphazard enforcement is not reasonable.
Instead, it reflects no boundaries beyond the presiding officer’s real-
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23-10656 Opinion of the Court 23
time judgment about who to silence. See Cambridge Christian Sch.,
942 F.3d at 1243–44.
In part because of the unsettled boundaries of the policy
purportedly banning personally directed comments, we also find it
difficult to discern what ends it might serve. The Board claims that
the policy’s purposes include ensuring “that speakers can share
their perspectives, regardless of viewpoint, while preventing
disruption or interference with the Board’s ability to conduct its
business.” It also asserts that the policy is meant to “maintain
decorum and avoid inciting audience members in a manner that
would create an unsafe situation.” But even a charitable reading of
the policy does not obviously (or even indirectly) advance these
goals. For example, would using someone’s name—even in a
positive comment and whether or not the person is there—
“disrupt” or “incite” audience members, or create an “unsafe
situation”? We do not see how.
Not only does this policy against personally directed speech
not advance the goals that the Board claims it serves, it actively
obstructs a core purpose of the Board’s meetings—educating the
Board and the community about community members’ concerns.
If a parent has a grievance about, say, a math teacher’s teaching
style, it would be challenging to adequately explain the problem
without referring to that math teacher. Or principal. Or coach.
And so on. Likewise when a parent wishes to praise a teacher or
administrator. Such communications are the heart of a school
board’s business, and the ill-defined and inconsistently enforced
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24 Opinion of the Court 23-10656
policy barring personally directed speech fundamentally impedes
it without any coherent justification.
To be sure, sometimes meetings can get tense—no one
enjoys being called out negatively, and some may even dislike
public praise. But that is the price of admission under the First
Amendment. Rather than curtail speech, as “a Nation we have
chosen a different course—to protect even hurtful speech on public
issues to ensure that we do not stifle public debate.” Snyder v.
Phelps, 562 U.S. 443, 461 (2011). Because the policy’s contours are
undefined and the record of enforcement only casts a shadow over
the school board meetings’ purposes, the Board’s prohibition on
personally directed speech is unreasonable and thus facially
unconstitutional. See Young Israel, 89 F.4th at 1350–51.
C.
Last, we turn to the policy prohibiting “obscene” speech.
Once again, the Board did not define its terms, but Belford did.
Obscene speech, she said, includes “things that are not appropriate
for young children. Language that is generally accepted to be
profane.” Profanity, in turn, includes “things that are sexually
explicit” and “words that are typically considered to be
inappropriate for use in school.” Moms for Liberty challenges this
part of the policy not on its face, but as applied—specifically as
applied to reading a book from an elementary school library.
Again, it seems clear that at least some iterations of an
obscenity policy would be constitutional—obscenity is one of the
few unprotected categories of speech under the First Amendment.
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23-10656 Opinion of the Court 25
Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 791 (2011). But that
constitutional standard is exceptionally narrow: material is obscene
when (1) “the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to
the prurient interest”; (2) “the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law”; and (3) “the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.” Miller v.
California, 413 U.S. 15, 24 (1973) (quotation omitted). So if the
Board were to use this part of the policy to prohibit true obscenity,
that action would survive under even the strictest review. We do
not, however, decide whether or how the school board could
properly prohibit other profane or explicit speech at school board
meetings, even if it does not rise to the level of true obscenity—
that question is not before us.
Instead, the Board used its obscenity policy to bar protected
speech, and it did so in a way that impeded the purpose of a school
board meeting. During the incident Moms for Liberty cites, a
member shared her concern that her child’s elementary school
library contained inappropriate books. She began reading one,
which detailed an in-school sexual encounter:
I tiptoed toward the door, peering through the
window at the boy’s pants around his ankles squeezed
between April’s straddled legs as she lay on the
teacher’s desk. I swung the door open letting a soft
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26 Opinion of the Court 23-10656
light from the hallway shine a spotlight on them.
‘Shit!’ he muttered.
Belford quickly interrupted the speaker when she got to the word
“shit.”
That word, though not polite, is also not obscene. Nor is the
book’s other content, no matter how objectionable it may be as
early childhood reading material. Moreover, the content of books
in school libraries is a matter of serious community interest. 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. Describing
the content of a book is not as potent as reading its words—nor is
it as informative. 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.
Because this prohibition on obscenity is not about obscenity,
and frustrates the purpose of the forum, it is an unreasonable
policy, at least as it applies to reading portions of books from
school libraries. It is therefore unconstitutional as applied here.
* * *
The government has relatively broad power to restrict
speech in limited public forums—but that power is not unlimited.
Speech restrictions must still be reasonable, viewpoint-neutral, and
clear enough to give speakers notice of what speech is permissible.
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23-10656 Opinion of the Court 27
The Board’s policies for public participation at Board meetings did
not live up to those standards. The district court court’s judgment
is therefore REVERSED and the case is REMANDED for
proceedings consistent with this opinion.
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23-10656 WILSON, Jr., Dissenting in Part 1
WILSON, Circuit Judge, Concurring in Part and Dissenting in Part:
I join the majority in its judgment to reverse and remand re-
garding the Brevard Public School (BPS) Board Policy on abusive
and obscene speech. As the majority outlines, the Policy’s re-
strictions on abusive and obscene speech were imprecise prohibi-
tions that impermissibly chilled speech. Similarly, the past prohibi-
tion on personally directed speech was inconsistently enforced in
an unreasonable way given the purpose of the forum. However, I
dissent from the majority in Part V.B.2 of the judgment. I would
find the present prohibition on personally directed speech facially
constitutional given its viewpoint neutrality and reasonableness in
light of the forum.
Further, I write separately to contextualize several of the
comments that appear in the majority opinion, along with addi-
tional examples to illustrate the tenor of comments and interrup-
tions at BPS meetings. By including links to video recordings of
each interaction discussed below, I hope to shed some light upon
the difficulties of enforcing these policies in real time during heated
meetings.
I. Background
The BPS1 Policy includes a section titled “Public Participa-
tion at Board Meetings.” This Policy aims to ensure “orderly
1 The BPS members mentioned in the complaint were Misty Haggard-Belford,
Matt Susin, Cheryl McDougall, Katye Campbell, and Jennifer Jenkins. Only
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2 WILSON, J., Dissenting in Part 23-10656
conduct or proper decorum” during meetings. To achieve this
goal, the Policy allows the presiding officer to “interrupt, warn, or
terminate a participant’s statement when the statement is too
lengthy, personally directed, abusive, obscene, or irrelevant.” The
presiding officer can expel any individual who “does not observe
reasonable decorum” and request law enforcement assistance to re-
move “disorderly” individuals. During the months when the meet-
ings at issue occurred, the Policy required speakers to direct com-
ments “to the presiding officer; no person may address or question
board members individually.” 2 The BPS Policy did not define “abu-
sive,” “obscene,” or “personally directed.”
All instances at issue in this case occurred between January
19, 2021, and October 26, 2021. Within that window, at least thirty-
four people identified themselves as Moms for Liberty (M4L) mem-
bers and collectively spoke at BPS meetings at least 109 times. 3 Of
the claim against Belford survived the motion to dismiss because she was the
only one who enforced the Policy.
2 In March 2023, the BPS Board altered the policy to allow speakers during
public comment periods to “address their comments to the Board as a whole,
the presiding officer, or to an individual Board member” but “[s]taff members
or other individuals shall not be addressed by name during public comment.”
Further, the Policy now states that the presiding officer may “interrupt, warn,
or terminate a participant’s statement when the statement is too lengthy, per-
sonally directed (except as allowed above), abusive, obscene or irrelevant.”
3 Four M4L members—Ashley Hall, Joseph Cholewa, Amy Kneessy, and Katie
Delaney—brought this lawsuit in their individual capacities along with M4L
as an organization. Ashley Hall was the founding chair of Brevard County’s
chapter. Joseph Cholewa and Amy Kneessy are M4L members. Katie Delaney
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23-10656 WILSON, Jr., Dissenting in Part 3
those 109 instances, M4L identify four times when their members
were interrupted. Of the four interruptions, only one escalated to
a M4L member being asked to leave a meeting for violating the
Policy. Hall spoke thirteen times during the relevant period and
was interrupted once when she violated the Policy by thanking a
specific school board member. Delaney spoke thirteen times with
zero interruptions. Kneessy, a former school board member, did
not speak at any meetings during the relevant window. Cholewa
spoke five times and was interrupted twice, and based on com-
ments he made after continuing to speak after one of those inter-
ruptions, he was asked to leave one meeting. The record also indi-
cates interruptions of speakers with viewpoints that differ from
those of M4L members.
II. Applicable Law4
Parents and community members can speak at BPS meet-
ings to “express themselves on school matters of community
was an M4L member but left in March 2022. Additional speakers whose inter-
ruptions are discussed in the majority opinion include Thomas Jefferson and
Lois Lacoste.
4 Before reaching the merits, I note that I concur with the majority in finding
that M4L and its individual members have standing for prospective relief by
meeting our liberal standard to show that enforcing the Board’s policy “would
cause a reasonable would-be speaker to self-censor.” Speech First, Inc. v. Cart-
wright, 32 F.4th 1110, 1120 (11th Cir. 2022) (internal quotation marks omitted
and alteration adopted). They also have standing to challenge the past itera-
tion of the policy barring personally directed speech because “a request for
nominal damages satisfies the redressability element of standing where a
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4 WILSON, J., Dissenting in Part 23-10656
interest.” Doc. 20 at 113. Like the majority, I agree that school
board meetings are limited public forums because they are created
“for certain groups or for the discussion of certain topics.” Rosen-
berger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
Government restrictions on speech in a limited public forum must
be (1) “viewpoint neutral” and (2) “reasonable in light of the fo-
rum’s purpose.” Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209,
1225 (11th Cir. 2017). Reasonable restrictions do not need to “be
the most reasonable or the only reasonable limitation.” Bloedorn v.
Grube, 631 F.3d 1218, 1231 (11th Cir. 2011) (quotations omitted).
Our circuit has recognized “a significant governmental interest in
conducting orderly, efficient meetings of public bodies,” Rowe v.
City of Cocoa, 358 F.3d 800, 803 (11th Cir. 2004) (per curiam). Re-
strictions to further this interest must remain reasonable. See Bar-
rett, 872 F.3d at 1224–25.
Both the Supreme Court and our circuit have been imprecise
and inconsistent when conducting forum analyses. See, e.g., Rosen-
berger, 515 U.S. at 829 (first delineating limited public forums as
their own category); Ark. Educ. Television Comm’n v. Forbes, 523 U.S.
666, 677–78 (1998) (seeming to change the definition of a limited
public forum); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106
(2001) (reaffirming the categories recognized in Rosenberger); Minn.
Voters All. v. Mansky, 585 U.S. 1, 11 (2018) (only listing three types of
forums rather than the four previously recognized); Rowe, 358 F.3d
plaintiff’s claim is based on a completed violation of a legal right.” Uzuegbunam
v. Preczewski, 141 S. Ct. 792, 802 (2021).
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23-10656 WILSON, Jr., Dissenting in Part 5
at 802 (applying a narrowly tailored to a significant government in-
terest test to a limited public forum); Bloedorn, 631 F.3d at 1225–26,
1231 (applying the viewpoint neutrality and reasonableness test to
a limited public forum). Perhaps given the considerable overlap
between a limited public forum analysis and nonpublic forum anal-
ysis, the majority almost exclusively relies on nonpublic forum
precedent. Nonetheless, I am concerned by the dearth of limited
public forum cases in the majority’s opinion.
Speech restrictions in both nonpublic forums and limited
public forums must be both viewpoint neutral and reasonable in
light of the forum’s purpose. See Pleasant Grove City v. Summum, 555
U.S. 460, 470(2009) (discussing limited public forums); Mansky,585 U.S. at 11
(discussing nonpublic forums). Although both types of
forums use the same legal test, limited public forum cases provide
closer factual analogues to BPS meetings. Because a limited public
forum analysis requires a reasonableness inquiry, finding a close
factual analogue matters even more than in other contexts. Lim-
ited public forum cases that involve school board or municipal
meetings will often have similar purposes and set out similar
speech parameters to meet those purposes, which makes them val-
uable data points for our analysis.
III. Analysis
Although I concur in judgment with all but part V.B.2 of the
majority opinion, I write separately to provide additional context
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6 WILSON, J., Dissenting in Part 23-10656
for the statements at issue in this case and to elaborate on where
my analysis departs from that of the majority. 5
A. Abusive Speech
I concur in the judgment finding the BPS Policy’s ban on
abusive speech facially unconstitutional, but I struggle to see the
ban on abusive speech as “an undercover prohibition on offensive
speech.” Maj. Op. at 18. When viewed in context, the interrup-
tions mentioned by the majority seem rooted in the difficulties of
conducting orderly school board meetings when confrontational
speakers make contentious comments.6 Further, the record re-
flects numerous arguably offensive statements that went uninter-
rupted and do not appear in the majority’s analysis.
First, I agree with the majority that as written, the Policy’s
ban on abusive speech could be weaponized and used in a
5 The facial challenges are being appealed from the motion to dismiss and the
as-applied challenges are being appealed from the motion for summary judg-
ment. We apply a de novo standard of review to both types of appeals. Chabad
Chayil, Inc. v. Sch. Bd. Of Miami-Dade Cnty., 48 F.4th 1222, 1229 (11th Cir. 2022)
(regarding motions to dismiss); King v. King, 69 F.4th 738, 742 (11th Cir. 2023)
(per curiam) (regarding motions for summary judgment).
6 Item K from the July 29 meeting shows how heated BPS meetings could be-
come. Jenkins spoke about the threats she had received because of her stance
on the mask mandate. Jenkins’s remarks about masks begin at about 15:15.
The video recording indicates yelling and jeering from the audience at about
15:50, which resulted in one audience member being escorted out at about
16:24. BPS, July 29, 2021 School Board Meeting. See Item K. Board Member
Reports/Discussion. https://brevardpublicschools.new.swagit.com/vid-
eos/257590.
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23-10656 WILSON, Jr., Dissenting in Part 7
viewpoint discriminatory way.7 The Policy does not define “abu-
sive,” and Belford struggled to articulate a clear definition during
her deposition. In the abstract, this enables the BPS chair to censor
offensive speech, which triggers the dual problems of chilling po-
tential speech and enabling viewpoint discrimination. As the Su-
preme Court has stated, “[g]iving offense is a viewpoint.” Matal v.
Tam, 582 U.S. 218, 243 (2017) (describing limited public forums in a
trademark case). The majority concedes that a more narrow or
explicit definition for “abusive” could survive a facial challenge, and
I agree. See Maj. Op. at 18.
In addition to analyzing the policy as written, we also must
engage with the facts as they appear in the record. Therefore, I
include direct quotes from BPS meetings to provide additional con-
text for the interruptions mentioned by the majority.
First, the majority mentions that Belford interrupted a
speaker, Thomas Jefferson, who frequently attends BPS meetings.
At the March 23 meeting, he characterized the COVID-19 mask
policy as “a simple ploy to silence our opposition to this evil
7 Because I concur in judgment to find the ban on “abusive” speech facially
invalid for allowing impermissible viewpoint discrimination, I do not reach
whether the prohibition on “abusive” speech is void for vagueness or over-
broad.
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8 WILSON, J., Dissenting in Part 23-10656
LGBTQ agenda.”8 After that interruption, Jefferson continued and
was able to express the following views without interruption:
You are elected to represent the majority of our con-
stituents not the minority of our constituents. And
the majority of the people in Brevard County oppose
any and all LGBTQ policy changes or implement [sic]
in our schools. There may be a minority, possibly
three percent that would support such a policy. How-
ever, the three percent will not get you reelected.
There are some people out there that like to label us
as a hate group. However, I want to make it perfectly
clear here and now we hate the sin not the sinner. . . .
We hate the sin not the sinners. We are the Christians
of Brevard county and all over the world and will not
sit silent and allow you to put your evil, sinful policies
on our children. . . . We will make sure that all mem-
bers that do not take a stand against these anti-Christ,
LGBTQ agenda policies, that we will vote you out the
next election cycle. This is God’s country, and God
will [sic] be done. We the people have spoken. To
God be the glory.
Immediately after Jefferson finished speaking, a board mem-
ber stated: “I just want to throw this out there. I am concerned that
8 BPS, Mar. 23, 2021 School Board Meeting. See Item E (Part 2 of 2). Public
Comment. Jefferson’s remarks begin at approximately 13:23, https://brevard-
publicschools.new.swagit.com/videos/03232021-1098.
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23-10656 WILSON, Jr., Dissenting in Part 9
we’re allowing comments that our students can hear and are prob-
ably watching at home that are calling them sinners.”
Next, the majority points to an interruption during a
speaker’s criticism of BPS efforts to support transgender children.
Lois Lacoste stated: 9
If you have students who are not sure if they are a boy
or a girl, please let me help you in knowing that God
created us with one or the other chromosome, which
makes us male or female. But the liberal left, who
seem to rely so heavily on “science,” . . . .
She was interrupted for her use of “liberal left,” but was permitted
to proceed. Lacoste finished her remarks with the following:
[T]he issue is not about equity or equality. It’s about
the end of decency in America. The citizens of Bre-
vard County are watching you. More importantly,
God Almighty is watching you. How will each one
of you answer to Him?
Although the interruption came after the “liberal left” reference, I
hesitate to isolate the phrase from the entire comment.
Then, the majority discusses a speaker who was interrupted
for repeating language that was “abusive to the speaker herself.”
Maj. Op. at 16. But the majority omits critical context that this
9 BPS, Mar. 9, 2021 School Board Meeting. See Item E (Part 1 of 2).
Public
Comment. Lacoste’s remarks begin at approximately 9:30, https://brevard-
publicschools.new.swagit.com/videos/03092021-1009.
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10 WILSON, J., Dissenting in Part 23-10656
speaker was a student who spoke about feeling unsafe as she
walked into a BPS meeting. This student recounted walking into
the meeting as parents outside “screamed at [her], called [her] a
bitch, a whore, a prostitute.” 10 I am hesitant to sanitize these facts
by removing them from the context of parent protestors calling a
BPS student these explicit names.
Beyond the examples included by the majority, I include oth-
ers to demonstrate the general tenor of the interruptions when
they occurred. Cholewa, a party to this case, often spoke at BPS
meetings. On September 21, 2021, he opened his remarks by stat-
ing the following:11
“It’s not about freedom.” That’s a direct quote from
the current president of the United States of America,
who’s a Democrat and a bully. It’s definitely about
politics, but it’s not about science or freedom. I won-
der what it was about for any of those who fought
against slavery or discrimination, or anyone who has
ever fought and died serving our military. It’s always
been about freedom.
10 BPS, Mar. 9, 2021 School Board Meeting.See Item E (Part 2 of 2). Public
Comment. The student’s remarks begin at approximately 1:40:15,
https://brevardpublicschools.new.swagit.com/videos/03092021-1009.
11 BPS, Sept. 21 2021 School Board Meeting.
See Item E. Public Comment.
Cholewa’s remarks begin at approximately 1:05:02, https://brevard-
publicschools.new.swagit.com/videos/09222021-781.
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23-10656 WILSON, Jr., Dissenting in Part 11
Although arguably already offensive, Cholewa’s remarks were not
interrupted. He continued until he said the following: “Let’s look
at some of the other leftist ideologies we’re fighting. We’re talking
about the party that accepts the murder of full-term babies with
abortion. The party that says babies, white babies are born racist
and oppressive.” At this point, Belford interrupted to say, “Joey,
you, you’re pushing the limit. Please be respectful, okay?” The
recording indicates that Cholewa’s comments led to disruption, in-
cluding yelling and disorder in the room. Amidst this disruption,
Belford asked audience members to stop yelling and asked
Cholewa to be respectful. However, Cholewa was asked to leave
during the following exchange:
Cholewa: And I will fight you. I’ll be here every week-
end, and I will be yelling at you and screaming at you
and telling you things that you don’t want to hear, and
that’s right, because this is America. I know you don’t
like freedom, I know you don’t like liberty, you don’t
like the Constitution—
Belford: All right.
Cholewa: Guess what. I’m going to keep talking.
Belford: Leave please. Have a good night.
Finally, the record reflects numerous instances where speak-
ers made offensive comments without interruption. For example,
one mother of BPS students expressed frustration with the dis-
trict’s mask mandate: “Our freedoms are worth something. It is
worth fighting for. And it starts with a yellow star on your chest.
USCA11 Case: 23-10656 Document: 86-1 Date Filed: 10/08/2024 Page: 39 of 44
12 WILSON, J., Dissenting in Part 23-10656
These masks are the yellow star on our chests.”12 Another example
came from another set of comments from Jefferson who referred
to the BPS board as a “board of dictators” and said, “This is Amer-
ica, not Nazi Germany. However, each day in America it seems we
are getting closer to Nazi Germany.” 13
If the ban on abusive speech were an undercover prohibition
on offensive speech, comments like these would have been categor-
ically interrupted. Rather, the ban on “abusive” speech was an im-
precisely worded prohibition, which impermissibly chilled speech
by allowing viewpoint discrimination. However, as the above ex-
amples illustrate, I do not believe the record reflects it was weapon-
ized. Therefore, I concur in the judgment but go no further.
B. Personally Directed Speech
Although I concur in judgment with respect to Part V.B.1 to
find the previous policy prohibiting personally directed speech un-
constitutional as applied to M4L, I dissent from Part V.B.2 finding
the present policy facially unconstitutional.14
12 BPS, May 21 2021 School Board Meeting.See Item E6. Public Comment.
Relevant comments begin at approximately 49:07, https://brevard-
publicschools.new.swagit.com/videos/05212021-941.
13 BPS, July 29 2021 School Board Meeting. See Item E (Part 2 of 2).Public
Comment. Jefferson’s remarks begin at approximately 2:43, https://brevard-
publicschools.new.swagit.com/videos/257590.
14 This ban on personally directed speech does not meet our circuit’s standard
for vagueness. See Tracy v. Fla. Atl. Univ. Bd. of Trs., 980 F.3d 799, 807 (11th
Cir. 2020). Individual speakers do not need to guess as to what speech is barred
USCA11 Case: 23-10656 Document: 86-1 Date Filed: 10/08/2024 Page: 40 of 44
23-10656 WILSON, Jr., Dissenting in Part 13
1. Past Policy
As I acknowledged above, I believe M4L has standing to pur-
sue nominal damages related to past enforcement of the old re-
striction against personally directed speech. Rather than truly ban-
ning “personally directed” speech, I believe the old ban functioned
as an inconsistently enforced ban on naming people. Both parties
acknowledge that this was viewpoint neutral. That is not enough
to protect the policy, which must be reasonable in light of the fo-
rum’s purpose. See Barrett, 872 F.3d at 1225. One core purpose of
school board meetings is to provide feedback about people and pro-
grams in the district. As applied to M4L (and others) as essentially
a ban on naming people, the restriction does not meet our reasona-
bility requirement. Therefore, I concur in judgment as to Part
V.B.1.
2. Present Policy
I dissent from the majority as to Part V.B.2 because I would
find the new Policy facially constitutional. Presently, the Policy al-
lows speakers to “address comments to the Board as a whole, the
presiding officer, or to an individual board member.” I read this
text to suggest that these are the only people speakers can address,
not the only people speakers may mention. This appears to me to
by the ban. Further, the restriction does not “cover[] substantially more
speech than the First Amendment allows.” Speech First, 32 F.4th at 1125.
Therefore, it is not impermissibly overbroad.
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14 WILSON, J., Dissenting in Part 23-10656
be both viewpoint neutral and reasonable given the purposes of a
school board meeting.
The new Policy bans speakers from directing comments at
particular people. But, for example, a parent addressing the entire
board may comment about particular teachers or coaches. In addi-
tion to remaining viewpoint neutral, I would find this restriction
reasonable given the feedback purpose of a school board meeting.
We acknowledge a municipal body’s interest in conducting orderly
meetings. See Rowe, 358 F.3d at 803. Footage from the meetings
indicates the most disruptive comments being those that seemed
directed at members of the audience, such as when Jenkins dis-
cussed a person who lurked around her home being present in the
board room or when people in the crowd began yelling at Jenkins
during her same report. 15 We do not require a limited public forum
to have the only reasonable or even the most reasonable restriction
on speech, but only a reasonable restriction, given the purpose of
the forum. See Bloedorn, 631 F.3d at 1231. As written, the new re-
striction on personally directed speech is a viewpoint neutral re-
striction reasonable in light of the forum’s purpose. I dissent from
the majority finding otherwise.
15 BPS, July 29 2021 Regular/Tentative Budget Hearing Meetings. See Item K.
Board Member Reports/Discussion Points. She speaks about the man at
about 18:40, which leads to some disruption. Members of the audience begin
yelling at Jenkins again at about 19:40. This commotion continued until Bel-
ford called for a brief recess. https://brevard-
publicschools.new.swagit.com/videos/257590.
USCA11 Case: 23-10656 Document: 86-1 Date Filed: 10/08/2024 Page: 42 of 44
23-10656 WILSON, Jr., Dissenting in Part 15
C. Obscene Speech
I agree with the majority that a ban on “some iterations of
an obscenity policy would be constitutional” because obscenity is
not protected speech. Maj. Op. at 24; see Miller v. California, 413 U.S.
15, 24 (1973). Because obscenity is not protected speech, M4L
could not bring a facial challenge to the BPS Policy’s obscenity ban.
Instead, M4L brought an as-applied challenge to this portion of the
policy as an obscenity ban. Because the prohibition was not applied
to obscenity as used as a term of art in the First Amendment con-
text, I concur in judgment.
Like the majority, I agree that this case does not present a
question of “whether or how the school board could properly pro-
hibit other profane or explicit speech at school board meetings.”
Maj. Op. at 25. I would not reach the purposes of the forum for
this analysis and would remain more rooted in the record.
Again, the rendition of facts in Part V.C. of the majority’s
opinion removes them from both the immediate context of the
speaker’s surrounding speech and the broader context of confron-
tational speakers at a school board meeting.
Here, Michelle Beavers, another M4L member who is not a
party to the case, read an alleged excerpt of a book16. After begin-
ning her remarks by discussing masks, she mentioned not having
16 BPS, October 26, 2021 School Board Meeting. See Item E10. Public Com-
ment. Beaver’s remarks begin at approximately 47:48. She pivots about 50:02.
https://brevardpublicschools.new.swagit.com/videos/257590.
USCA11 Case: 23-10656 Document: 86-1 Date Filed: 10/08/2024 Page: 43 of 44
16 WILSON, J., Dissenting in Part 23-10656
much time to talk about books. Abruptly, she pivoted, without
prefacing that the following remarks were from a book and not her
own:
I tiptoed toward the door, peering through the win-
dow at the boy’s pants around his ankles squeezed be-
tween April’s straddled legs as she lay on the teacher’s
desk. I swung the door open letting a soft light from
the hallway shine a spotlight on them. “Shit!” he mut-
tered.
After Belford stated, “Ma’am, I need for you to keep your language
clean,” Beavers continued “[o]h this was our schoolbooks.” How-
ever, Beavers never mentions what book this quote allegedly came
from, the school in which this alleged book was purportedly lo-
cated, or the age of the students who had access to the book. Later,
she claims to quote from a different book found in libraries for sec-
ond graders. Based on the record, I hesitate to make definitive
statements about the language repeated by Beavers as coming “di-
rectly from a book that is available to children in their elementary
school library.” Maj. Op. at 26.
Finally, M4L only challenges restrictions on speech at BPS
board meetings and does not raise any challenges related to alleged
obscenity in books.17 Though I concur in judgment based on
17 I would refrain from labeling text in any schoolbooks “obscene.” M4L and
its members have made statements regarding the contents of books in BPS
schools, but this case relates to speech at BPS meetings. This case does not
involve books, and I would refrain from discussing the contents of books.
USCA11 Case: 23-10656 Document: 86-1 Date Filed: 10/08/2024 Page: 44 of 44
23-10656 WILSON, Jr., Dissenting in Part 17
obscenity’s definition as a term of art in First Amendment jurispru-
dence, I believe the majority goes further than necessary in its anal-
ysis. 18
* * *
Overall, I find it imperative to contextualize the comments
and interruptions at issue within the contentious conversations
that occurred at BPS meetings. School board meetings are limited
public forums. As such, school boards may restrict speech so long
as their restrictions are reasonable in light of the purpose of the
forum and maintain viewpoint neutrality. Several of the re-
strictions used by BPS did not meet these requirements. Therefore,
I concur in judgment to all but Part V.B.2 of the majority’s opinion.
18 Because I concur in judgment to find the obscenity ban unconstitutional as
applied, I do not reach the vagueness or overbreadth challenges to this portion
of the policy raised by M4L.
Reference
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