Of Roses, Thorns, and Speech: Our Most Basic Right

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John M. Sedor, Sedor, Wendlandt, Evans & Filippi, LLC

Part 7 of the series Back to Basics

This year we are exploring “the basics.” “Basics” does not necessarily mean simple; it means foundational. For instance, in January, Clint explained the foundational relationship between student records and a District as set out in FERPA which was signed into law in 1974 by President Gerald Ford. This month, we step back even further into our history as we explore the foundations of speech by and between the government and its citizens.

For those who attended the Law & Policy Day in Juneau on February 8th we took a “deep dive” into Free Speech and Schools. Presentations by NEA-Alaska, the conservative Independence Law Center (from Pennsyvania) and the ACLU set up a spirited panel discussion facilitated by former senator Tom Begich. We learned that the tension that can be created when opposing viewpoints collide … is exactly what the First Amendment intended. Like a rose and its thorn, we cannot enjoy our right to express ourselves without recognizing that we may find the expression of others a proverbial “thorn in our side.”

“Congress Shall Make No Law … Abridging the Freedom of Speech”

Of course, this is the First Amendment. The First Amendment was not included in the Constitution – which may seem odd. Many of the “Founding Fathers” (including Alexander Hamilton) did not want to include it or a “bill or rights” in the Constitution because ““[W]hy declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [to the Federal government] by which restrictions may be imposed?” (Federalist Paper No. 84:  https://supreme.findlaw.com/documents/federalist/federalist84.html) In other words, the absence in the Constitution of granting to the newly created Federal government any right to curtail speech (and other individual rights) should make the bill of rights unnecessary. Some states, however, disagreed and refused to ratify the Constitution without a bill of rights. So a Bill of Rights was created and sent to the States for ratification. It had 12 proposed amendments to the Constitution. The amendment protecting free speech was number 3. Only 10 were ratified to become the first Ten Amendments to the Constitution. Thus, the “First Amendment” only became the “First Amendment” because the two in front of it in the Bill of Rights were not ratified. (https://www.archives.gov/founding-docs/bill-of-rights-transcript).

The First Amendment sets our rights in relation to the Federal Government. The Bill of Rights – including the First Amendment – now also applies to state governments through the post-Civil War 14th Amendment.

In addition to First Amendment protection, we Alaskans enjoy protection related to our speech from the State Constitution also: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Article I, Section 5 (https://law.justia.com/constitution/alaska/constitution-1.html) So state governments are obligated to allow for and not curtail speech under the fundamental/basic rules of both the Federal and State constitutions.

These protections of speech are significant. Applying these protections to a person’s speech at a school board meeting can be complicated and factually difficult. Most school board meetings are limited public forums – this basically means the government (the school board) is not required to allow people to engage in every type of speech.[1] A person’s speech in a limited public forum can be restricted by the school board if the restrictions are reasonable and viewpoint neutral.

Viewpoint neutral speech restrictions will not and cannot eliminate uncomfortable speech. This is because offensive or uncomfortable speech itself is Constitutionally protected in many situations. The US Supreme Court has found that offensive speech “is a viewpoint.” (Which means if it is restricted, it is not viewpoint neutral.)  Thus, recent cases around the country seek to determine whether and when a school board or city council can restrict speech that is determined by the governmental body to be “disrespectful,” “antagonistic,” “abusive,” “critical,” or “profane.” Depending on the facts, all of these terms could be found by a court to not be viewpoint neutral.

This may seem to create a conundrum. What can a school board do to ensure that its meetings are efficient and “appropriate” to the setting? The answer, or at least a big part of the answer, is to review your bylaw and agenda to determine whether it and when it restricts speech. If it does, consider whether the restrictions are viewpoint neutral. This review (and possible revision process) should not be done in the middle of a controversial issue in your district – for that, in and of itself, could be evidence that the effort is not viewpoint neutral. Finally, if and when you have to apply the rule to a speaker, remain calm. Consider taking a recess prior to applying the rule to give you and your fellow board members a chance to reflect.

We all cherish our rights of free expression. But like the rose, we have these rights only because those with whom we vehemently disagree have them also.

Practice Pointers:

  1. Review your Board Bylaws. How does your board allow for public comment?
  2. Does the Board allow comment on non-agenda items? If so, what does this mean in if an acrimonious issue arises … that is not even a school board business item?
  3. Consider viewpoint neutral rules for public comment. To help you do that, refer to my January 2023 AASB Commentary, Please Tell Us What’s on Your Mind? – Fine-Tuning Public Comment at School Board Meetings.

[1] The speech allowed by the government, therefore, is a relevant consideration in any dispute. Consider what this might mean if your agenda allows for “public comment on non-agenda items.”

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