Judges Back Moms for Liberty on Publicly Chiding Teachers, Books

Two Trump-appointed federal appellate judges appeared sympathetic to Moms for Liberty’s contention that its members were unconstitutionally blocked from criticizing teachers by name or reading obscene passages from books they sought to restrict at one Florida school board’s meetings.

Judges Britt C. Grant and Barbara Lagoa honed in on those two restrictions as potentially unconstitutional limits on free speech as part of a three-judge panel hearing oral argument on Tuesday at the US Court of Appeals for the Eleventh Circuit in Atlanta. The Brevard County, Fla., affiliate of parent-rights advocacy group Moms for Liberty is asking the Eleventh Circuit to revive its lawsuit challenging the Brevard Public Schools policies governing public comments at board meetings.

“How is it reasonable for a person to be prohibited from naming a specific teacher or school official” when criticizing a classroom or school system policy, Lagoa asked.

Moms for Liberty has caught public attention as part of a broader movement alleging liberal indoctrination in public schools, while calling for banning certain books from school libraries and limiting classroom discussion of topics such as sexual orientation and gender identity. Florida enacted such a policy into law in 2022, resulting in a series of legal battles between Gov. Ron DeSantis (R) and The Walt Disney Co. after the governor retaliated over Disney’s criticism of the law. Members of the group in Brevard County also criticized the school system during the Covid-19 pandemic for mandating masks.

The group is appealing its loss at the US District Court for the Middle District of Florida, which ruled in favor of the school board in February 2023. The lower court found the plaintiffs lacked standing to sue because the policy didn’t have a chilling effect on their free speech. Even if the plaintiffs had standing, it said, their claims would fail because the school board applied its policy in a viewpoint-neutral way.

Alan Gura, an attorney at the Institute for Free Speech who represented Moms for Liberty, criticized the board’s rule against personally-directed comments as “the Voldemort rule: he who must not be named"—a nod to the chief villain from the Harry Potter book series whose name other characters are reluctant to speak.

The board’s policy of banning offensive, insulting, and personally-directed speech runs afoul of the First Amendment even if it’s evenly applied to people with varying political perspectives, Gura told the judges.

“People have a right to use their arguments and words,” he said. “It does not matter that the way they use their words was offensive to the school board.”

The board’s rule against naming teachers or other school officials in meetings prevents them being publicly accused of wrongdoing without an immediate chance to defend themselves, said Gennifer L. Bridges, an attorney at Burr & Forman LLP in Orlando who represented Brevard Public Schools.

The Moms for Liberty plaintiffs “have engaged in a considerably revisionist version of the facts,” during their appeal and oral arguments, Bridges told the court.

“This is a viewpoint-neutral and content-neutral policy, and it’s narrowly tailored,” she said.

Joining Grant and Lagoa on the panel was Judge Charles R. Wilson, a Clinton appointee.

One of Moms for Liberty’s cofounders and her husband, Bridget and Christian Ziegler, were the subjects of sex scandal allegations involving another woman in December that led to his removal as chairman of the Florida Republican Party. Bridget Ziegler also is a school board member in Sarasota, Fla., where she has faced calls from the public to resign.

Maintaining Decorum

Eleventh Circuit precedent supports that government officials “are entitled to maintain order and decorum as long as their policies do not discriminate on viewpoint,” Wilson said. Pointing to this case’s factual history, he said during a nine-month time frame in 2021, 34 members of Moms for Liberty spoke more than 100 times at Brevard school board meetings, and the board chair only interrupted them four times and asked one speaker to leave a meeting.

Gura said the board chair constantly interrupted speakers, not just Moms for Liberty members, and that some of the members named as plaintiffs hesitated to speak at meetings for fear of being interrupted, kicked out, or arrested.

Grant also voiced skepticism about the board’s justification for preventing a speaker from reading aloud from a book that contained profanity, when the speaker’s purpose in reading it was to argue that its access in school libraries should be restricted.

“How can they communicate that without reading from the book in this public meeting?” Grant asked.

Bridges said concerned parents can read aloud from books while omitting language that would be considered obscene, as a Moms for Liberty member continued to do at one meeting after the board chair interrupted once to provide warning.

Reading the actual words of the book “would be more persuasive to other interested parents,” Grant said.

Lagoa also reinforced Gura’s argument that the board’s policy against abusive speech “is a prototypical vague and overbroad” rule.

Pointing to the case record, Lagoa said the Brevard schools official who wrote the policy on abusive speech said it wasn’t clearly defined but that “the meaning was, she could just smell it.”

The case is Moms for Liberty-Brevard Cnty., Fla. v. Brevard Pub. Sch., 11th Cir., No. 23-10656, oral argument 1/23/24