An excerpt from yesterday's long opinion by Judge Diane Gujarati in Alexander v. Sutton (E.D.N.Y.); read the whole thing for more:
New York Education Law Section 2590-c sets forth that each community district shall be governed by a community district education council ("CEC")…. Plaintiffs declare that they understand that for CEC 14's December 18, 2023 public meeting, CEC 14 adopted "Community Guidelines." … [Among other things, the Guidelines] provide a list of "Absolute no's," as follows:
- This is not a space where we will tolerate antagonistic behavior or any of the following: homophobia, transphobia, misogyny, ableism, racism, or any other forms of oppressive beliefs or behaviors. Anyone who violates this guideline will be removed.
- There will be no name-calling of any community members in this space. If you violate this, you will be removed.
- If you continually disrespect the community, you will be given 2 warnings before being removed.
Plaintiffs further declare that they understand that CEC 14 rewrote its rules as "Community Commitments" in connection with the January 2024 public meeting. The Community Commitments, also referred to as the "Community Agreements," provide [in part]:
- … We reserve the right to remove participants causing discord, spreading misinformation and/or affiliated with hate groups. The DOE may not utilize this practice or standard, but we do.
The court held that many of these restrictions are unconstitutionally overbroad, vague, or viewpoint-based, and held (among other things) that the removal of one plaintiff from CEC likewise violated the First Amendment:
Although the Second Circuit does not appear to have addressed the constitutionality of Regulation D-210, courts outside of the Second Circuit—referencing Tam and/or Iancu—have held speech restrictions similar to those set forth in Regulation D-210 to violate the First Amendment. See, e.g., Ison v. Madison Loc. Sch. Dist. Bd. of Educ. (6th Cir. 2021) (concluding that school board's restrictions on "abusive," "personally directed," and "antagonistic" speech, facially and as applied, constituted impermissible viewpoint discrimination because "they prohibit speech purely because it disparages or offends"); Mama Bears of Forsyth Cnty. v. McCall (N.D. Ga. 2022) (concluding that school board's "respectfulness" requirement, which court interpreted to be prohibition against "offensive, rude, insulting, or abusive" speech, was viewpoint-based and thus facially unconstitutional and that "because the Plaintiffs' facial challenge is successful, the Court need not address their as-applied challenge"); see also, e.g., Marshall v. Amuso (E.D. Pa. 2021) (concluding that defendant had not met burden to show that school district's prohibitions against speech deemed, inter alia, "personally-directed" and "abusive" did not constitute viewpoint discrimination as applied to plaintiffs, and concluding that defendant had not met burden to show that prohibitions against speech deemed, inter alia, "personally directed," "abusive," "offensive," "otherwise inappropriate," "personal attack," "inappropriate," and "intolerant" were not facially vague or overbroad); but see Moms for Liberty—Brevard Cnty. v. Brevard Pub. Schs. (M.D. Fla.), aff'd (11th Cir. Nov. 21, 2022)….
Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portions of Regulation D-210—namely, the prohibitions against "frequent verbal abuse and unnecessary aggressive speech that serves to intimidate and causes others to have concern for their personal safety"; "derogatory or offensive comments about any DOE student"; and "conduct that would publicly reveal, share or expose private or personally identifiable information about a DOE student or a member of such student's family without their consent"—are unconstitutional, facially and/or as applied.
As an initial matter, Regulation D-210's scope appears to extend beyond regulating conduct at CEC meetings or otherwise on government-owned property. See Regulation D-210 at 2 (defining "conduct" as "verbal and physical acts and behavior, including a Council Member's use of oral and written language, when it occurs at," inter alia, "other activities when such conduct creates or would foreseeably create a risk of disruption within the district or school community the Council Member serves and/or interferes with the functioning of the [CEC] or the performance of the Council Member's [CEC] duties"). Accordingly, the Court does not analyze Regulation D-210 under a forum-based approach. {The Court notes that, even under a forum-based approach, the Court's conclusions with respect to the challenged portions of Regulation D-210 would remain the same.}
Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) of Regulation D-210 is facially unconstitutionally vague. Regulation D- 210 itself does not provide definitions for terms such as "frequent verbal abuse" or "unnecessary aggressive speech." Indeed, when asked about the definition of "verbal abuse" at the June 18, 2024 oral argument, counsel for the City Defendants acknowledged that there was no definition in the regulation and stated, inter alia, that "there is going to be a subjective component" to the definition of such term, and that "there is a specific investigative process" to determine whether conduct would fall within the scope of "verbal abuse."
Notably, a determination of the scope of "frequent verbal abuse"—during the investigative process—does not provide a reasonable opportunity to a person of ordinary intelligence—before such person is subject to investigation under Regulation D-210—to understand what conduct Regulation D-210 prohibits. Here, given the lack of clarity with respect to conduct covered by Section II(C), Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits and that it encourages arbitrary and discriminatory enforcement. Further, … "frequent verbal abuse and unnecessary aggressive speech" is a "boundless category" that does "not merely forbid well-established categories of unprotected speech, such as fighting words, obscenity, or true threats."
Plaintiffs have also shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) is unconstitutionally vague as applied to Plaintiff Maron, who was removed as a member of CEC 2 based on, inter alia, a finding that her statement to the New York Post constituted unnecessary aggressive speech that served to intimidate and cause others to have concern for their personal safety. {[O]n February 16, 2024, the student newspaper at Stuyvesant High School published an anonymous full page editorial titled, "Black and White: The Withheld Story of Palestine and Israel" and that Plaintiff Maron told the New York Post, in reference to that editorial, that "[t]he byline should read coward instead of anonymous;" that "[i]f you are going to repeat revolting Hamas propaganda and transcribe your ignorance and Jew hatred, put your name to it;" and that "Principal Yu should address the school and explain to Jewish students why this factually inaccurate bile was published on the school paper anonymously," and declaring that Plaintiff Maron "do[es] not know the author's identity" or "whether the author was a student, a staff member, or some other person").}
Notably, Plaintiff Maron's comments did not identify the editorial's author and Plaintiff Maron declares that she did not know the author's identity or whether the author was a student, a staff member, or some other person. Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) failed to provide Plaintiff Maron a reasonable opportunity to understand what conduct it prohibited and that the challenged portion of Section II(C) was discriminatorily enforced.
Plaintiffs have also shown a clear and substantial likelihood of establishing that the challenged portion of Section II(D) of Regulation D-210 facially violates the First Amendment because it discriminates based on viewpoint. As an initial matter, Section II(D), which prohibits "derogatory" and "offensive" comments about any DOE student, regulates speech on the basis of content. Further, a prohibition on "derogatory" or "offensive" speech disfavors ideas that offend and therefore discriminates based on viewpoint, in violation of the First Amendment….
Further, Plaintiffs have shown a clear and substantial likelihood of establishing that Section II(E) of Regulation D-210 facially violates the First Amendment. Plaintiffs have shown a clear and substantial likelihood of establishing that Section II(E) of Regulation D-210 is not narrowly tailored to achieve a compelling government interest. Section II(E), which prohibits conduct that would publicly reveal, share, or expose private or personally identifiable information about a DOE student or a member of such student's family without their consent, regulates speech on the basis of content and therefore is subject to strict scrutiny. Plaintiffs have shown a clear and substantial likelihood of establishing that Section II(E) is not narrowly tailored to achieving even the interest of preserving student privacy identified by Defendants.
Defendants do not explain, and it is not readily apparent, how revealing certain categories of information, such as the "employment status" of a DOE student's family member—a category of information included in Regulation D-210's definition of "personally identifiable information"—would necessarily threaten the privacy of a DOE student or subject that student to harassment or "doxxing" by CEC members. Further, the definition of "personally identifiable information" set forth in Regulation D-210 states that the term is "not limited to" the types of information set forth therein. Section II(E) appears to span beyond "the least restrictive means" of achieving the interest of preserving student privacy. Plaintiffs have shown a clear and substantial likelihood of establishing that a substantial number of Section II(E)'s applications are unconstitutional judged in relation to its plainly legitimate sweep.
The City Defendants appear to invite the Court to extend the law regarding speech of public employees. Here, Plaintiffs do not receive a salary or stipend in connection with their roles as CEC members; Plaintiffs were elected to their respective CECs; and New York Education Law does not appear to classify CEC members as employees.,,,
Here, Plaintiffs have shown a clear and substantial likelihood of establishing that the Community Guidelines fail under either level of scrutiny because the prohibitions are not viewpoint neutral. The Community Guidelines' prohibitions of, inter alia, "homophobia, transphobia, misogyny, ableism, racism, or any other forms of oppressive beliefs or behaviors," "name-calling," and "disrespect" are prohibitions against ideas that offend, and therefore discriminate on the basis of viewpoint in violation of the First Amendment.
For the same reason, Plaintiffs have shown a clear and substantial likelihood of establishing that the Community Commitments violate the First Amendment. The Community Commitments set forth various statements to which participants at CEC 14's meetings are required to agree, including "[w]e reserve the right to remove participants . . . affiliated with hate groups," which requirement discriminates on the basis of viewpoint, in violation of the First Amendment.
Plaintiffs have also shown a clear and substantial likelihood of establishing that a portion of Article IV § 2 of CEC 14's Bylaws—specifically, the restriction on "[d]iscussion and charges relating to the competence or personal conduct of individuals"—violates the First Amendment. As an initial matter, this restriction appears to cover speech that falls within the designated category for which the limited public forum—CEC meetings—has been opened. Strict scrutiny therefore is accorded to this restriction, and Plaintiffs have shown a clear and substantial likelihood of establishing that the restriction does not pass strict scrutiny. Defendants have not offered a compelling government interest underlying this restriction. And, even assuming there were a compelling government interest, the restriction, which appears to prohibit speech that is core to the purpose of CEC meetings, would not be narrowly tailored….
Plaintiffs have shown a clear and substantial likelihood of establishing that CEC 14's practices regarding its official X account discriminate on the basis of viewpoint and/or political association as applied to Plaintiffs, in violation of the First Amendment. Plaintiffs have shown a clear and substantial likelihood of establishing that Defendants have prevented Plaintiffs from accessing CEC 14's official X account on account of their views. Indeed, Plaintiffs' various declarations provide evidence that Plaintiffs have been blocked or otherwise prevented from accessing CEC 14's official X account on the basis of their viewpoints and/or political associations.
Alan Gura, Dennis J. Saffran & Nathan John Ristuccia (Institute for Free Speech) represent plaintiffs.
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