Viewpoint-Based Enforcement of “No Advertising Policy” as to Public Comments Likely Violates First Amendment

From Judge Stephen Clark (E.D. Mo.) Mo.) Brooks, v. Francis Howell School Dist.I think it is correct that the decision was made Thursday

The Plaintiffs often oppose local elected school boards’ actions through a political committee. While speaking during the public-comment portion of board meetings, Plaintiffs mention the PAC—Francis Howell Families—and point the board to the trove of detailed information on the PAC’s website,

Invoking its “no-advertising” policy, the board banned Plaintiffs speaking at board meetings about “Francis Howell Families” and its website. They also threatened to stop them “immediately,” cut off the microphone of one Plaintiff, and ban them forever from speaking at meeting. Insofar as the board allows other organizations, which support the board, freer reign at meetings, Plaintiffs challenge the board’s actions as viewpoint discrimination….

[T]he patron-comment section of school board meetings is a limited public forum, and that the school board may impose reasonable and viewpoint-neutral restrictions on speech during patron comments…. [But t]The Plaintiffs were subject to a “unique scrutiny” by Defendants, which is evidence that Defendants are pursuing their goals. [viewpoint-]discriminatory motive…. Other individuals have been allowed to mention other organizations that support the board’s favored views or are opposed to Francis Howell Families. Defendants also allowed patron comments to allow other people to participate in political campaigning without any interruption.

One example: A board member allowed a person to reference “Black Voices Matter” while he was not recognizing “positive Progress”. [the]District has undertaken equitable and antiracist measures. Plaintiffs remind that Black Voices Matter as well Francis Howell Families have views about board action and both call for policy change. However, defendants only prohibit Francis Howell Families from being mentioned during patron comment periods.

A second example: During another board meeting, the District communications Director read another patron comment that had been submitted online to the board. The commenter was identified as being a “member” of MNEA. MNEA has its own committee for political action and supports candidates seeking public office, as required by public filings. Although MNEA is connected to Missouri National Education Association through several admisted exhibits, neither the parties nor the Court address the issue of which organization it was that the commenter was speaking about. We don’t know which organization this individual is referring to. However, it provides an example of someone identifying themselves as being part of another organization during the patron comment section of a board session, and without any reprimanding or censure.

As a third example, during the patron-comment section of the March 17, 2022 meeting, the board permitted several speakers to directly address not the board but audience members and to urge those listening to vote for certain school board candidates and against candidates associated with Francis Howell Families—only thinly veiling the candidates to which the speakers referred. These speakers overtly implored the audience to vote for their favored candidates—a direct affront to the board’s “no political campaigning” policy—yet the board allowed the speakers to proceed, unabated.

The tone of the after-the fact email sent by the board to the speakers is different from the one it sent to Plaintiffs. According to an email from the board, individuals stumping for Board candidates were informed that they “may have been seen by some as being political campaigning.” [which is forbidden by another school board policy]And asked that the person “please remember this next time you address The Board. As I don’t want us both to be in the situation of needing to cut your time off, In an email sent by the board to Plaintiff Rash, it warned that:[f]You will be told that your microphone is being turned off, and you have your time taken away.[f]Uture violations could also lead to you being banned from giving patron comments. In addition to the extreme language that Defendants used when addressing Plaintiffs, the Court also found evidence of viewpoint discrimination in the emails that Defendants sent to people who had campaigned against Plaintiffs.

These actions and statements serve as evidence of viewpoint discrimination….

The Court concluded that this evidence was enough to justify a preliminary injunction against the board, barring it “from enforcing Francis Howell School District Policies … to prohibit Plaintiffs’ reference to ‘Francis Howell Families’ or the Francis Howell Families website,, while addressing the school board during the patron-comment period at school board meetings.”