Man silenced at school board meeting loses First Amendment claim
School board officials in South Glens Falls, N.Y., did not violate the First Amendment rights of a man when they refused to let him speak about certain topics at a meeting, a federal district court recently ruled.
Timothy Curley contended that Virginia Philo, school board president of the South Glens Falls School District, and the board itself violated his free-expression rights when they prohibited him from speaking about a
school-banquet slide show and the replacement of the varsity girls’ soccer coach. The board replaced the popular coach with Philo’s son.
In February 2007, the school board held a meeting at which many spoke in support of the then-current girls’ soccer coach and Curley voiced his objections to a slide show shown at a November 2006 banquet for the boys’ soccer team. Curley, the parent of a soccer player, said he found the images shown to the team offensive, contending that one slide was sexually suggestive and another racially insensitive. Curley also expressed concerns about the replacement for the girls’ soccer coach.
The school board took no action on the soccer coach or the slide show. However, during a March 2007 meeting Philo read a letter to Curley: “We are the attorneys for the South Glens Falls Central School District. Over the last several weeks you have been engaging in extensive and improper communications with employees and officers of the school district. This activity is disrupting the school community. It must cease immediately. Therefore, any
further communications in regard to the district should be directed to [Philo].”
The alleged “improper communications” included Curley’s comments at the February 2007 meeting and Curley’s contacting of the local news media about the controversies. At the March meeting, Philo restricted comments about the slide show and the girls’ coach. When Curley tried to speak on these subjects, officials denied his attempts and later had him escorted out of the building. Curley sued Philo and the school board in federal court, contending they had violated his First Amendment rights.
U.S. District Judge Gary L. Sharpe for the Northern District of New York ruled in favor of the defendants in Curley v. Philo. In his July 14, 2009, opinion, Sharpe reasoned that the case hinged in part on the application of the public-forum doctrine. In First Amendment law, individuals have greater free-speech rights in some places or forums than in others.
The categories of places under the doctrine are traditional, designated, limited and non-public forums. In a traditional public forum — such as a public street or a public park — government officials can restrict speech only if they meet the highest standard of judicial review, known as strict scrutiny. This means that the government cannot restrict speech on the basis of its content unless it has a very strong or compelling interest such as public safety and only if the restriction is not applied too broadly.
A designated public forum is a place that although not traditionally open for public expression, may be so declared by government officials to allow open discussion. Speech rights in a designated public forum are considered equivalent to those in a traditional public forum as long as the government continues to
designate the forum as open.
A limited public forum is a non-public forum that the government opens for discussion limited to certain kinds of speakers and topics. In a limited public forum, government officials must make reasonable, viewpoint-neutral rules regarding content.
The final category is a non-public forum, which neither is traditionally open for public discussion nor has been opened or designated for discussion by the government. A military base is an example.
Courts have differed in defining the difference between designated and limited public forums. Some government meetings, such as city council proceedings, have been declared designated public forums, others limited. Curley
contended that school board meetings were designated forums, while the school board countered that they were limited. Sharpe reasoned that decisions by the 2nd U.S. Circuit Court of Appeals, which covers New York, have declared similar school board meetings limited forums.
“Under the limited public forum analysis, property remains a nonpublic forum as to all unspecified uses, and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Sharpe wrote.
He then determined that “the School District had the right to exclude the topics of the slide show and girls’ soccer coach from the forum regardless of the particular stand a speaker may have and, that in doing so, there was no
viewpoint discrimination on its part.” Sharpe emphasized that “all viewpoints” regarding the soccer coach and the banquet slide show “received the same treatment.”
Daniel J. Stewart, the attorney who represents Curley, said no decision had been made on whether to appeal.
“I think that if the 2nd Circuit examined this case, the appeals court would at least find there were fact questions regarding the nature of the forum,” Stewart said. In the district court case, he said, “We submitted an affidavit
(sworn statement) from a past school board president explaining that people could speak on any subject at school board meetings.”
The affidavit was from Jacqueline Bashant, who was the South Glens Falls school board president for five years. It said: “As a Board member, and Board President, I was present for open forum sessions as part of the Board
meetings. … Prior to March 2007, the open forum had not been limited in any way, either by time, speaker or subject. The only limitation was that you could not use proper names. Residents were encouraged to make their feelings known on whatever topic was important to them.”
Stewart said he saw several disturbing aspects to the Curley case. One of the most disturbing, he said, was that “when Mr. Curley would send messages to school officials, they would not respond to his queries but instead he would receive letters from attorneys for school board members saying no more communication or no more improper communications.”
John F. Moore, one of the attorneys for the defendants, said, “The court was correct in concluding that the school board meeting was a limited public forum.”