Right before the Thanksgiving holiday, the United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction against the Pennsbury School District involving its enforcement of public comment restrictions under Policy 903. The plaintiffs in Marshall vs. Amuso are Simon Campbell and other individuals who provided public comment at Pennsbury School Board meetings. They sued Pennsbury officials and school board members.
Pennsbury had maintained a version of Policy 903 similar to many of our clients. The Policy prohibits public comments that are deemed “personally directed,” “abusive,” “irrelevant,” “offensive,” “otherwise inappropriate,” or “personal attacks.” The plaintiffs alleged that Pennsbury relied on these provisions of Policy 903 to cut off public comments in a manner that violated the First Amendment. Noting that “the First Amendment protects offensive speakers,” the Court found that enforcement of Policy 903 could constitute impermissible viewpoint discrimination. Policy 903’s restrictions are vague “because they are irreparably clothed in subjectivity.” What is considered “irrelevant” or “offensive” “varies from speaker to speaker, and listener to listener.” The Court enjoined Pennsbury from enforcing these elements of Policy 903, finding that “the risk of speakers going too far afield in a five-minute time period appears minimal and is outweighed by the risk of free speech infringement.”
The Court also found that Pennsbury’s requirement for public speakers to state their home address is an “unreasonable restriction” that could have a “chilling effect” on public comment. If your School Board requires citizens to state their home address prior to giving comment, we recommend you consider revising this practice in light of this decision. In lieu of publicly announcing the home address, the Court suggested that “each speaker’s address can be collected when they sign up for their speaking slot.”
While only a preliminary decision, the Pennsbury case does raise some interesting questions about the enforcement of public comment restrictions in this age of tumultuous school board meetings. Please note the case arises from the Eastern District Court and is not binding on our clients situated in the Middle District. However, it may be time to revise and update Policy 903 to address some of the issues the Court found. We recommend you also make your Board Presidents aware of this decision and the perils of attempting to cut off public comment in certain circumstances. Please consult your Solicitor if you wish to consider revising Policy 903 and/or discuss specific strategies for managing public comment without violating the First Amendment.