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11TH Circuit Says School Policy for Commencement Speech Unconstitutional


Have you ever wanted to speak at a school or other public event, but were denied the opportunity based off a policy? After a recent decision by the Eleventh Circuit Court of Appeals, that policy may be at risk of being unconstitutional.

In the case of Barrett v. Walker County School District, a teacher, Mr. Barrett, sued the Board of Education regarding a policy which regulated speaking in a public comment session. The policy required a preliminary meeting with the Superintendent before giving a speech. After the meeting, the speaker must request permission from the Board to speak. Mr. Barrett was denied permission to speak in the public session.

Mr. Barrett aimed to criticize a new grading procedure. However, after two meetings with the Superintendent, Mr. Barrett’s request to speak at the comment board was denied. Mr. Barrett later sued the Board, alleging his First Amendment rights had been violated. He requested from the Court that the policy be removed. The trial court agreed, and the Eleventh Circuit Court of Appeals upheld the trial court decision.

The Eleventh Circuit decision focused on the lack of procedures in place to regulate the permission process. The policy afforded the Board with a lot of control to grant or deny permits. This violates the First Amendment for two reasons. First, it creates an incentive for a speaker to self-censor their thoughts so that he or she will increase their chance of being granted a permit. Second, it makes it difficult to determine if the decision to grant or deny the permit was based on the viewpoint of the speaker.

The School Board argued that their policy was “content-neutral” because it did not require the speaker to disclose what he or she wanted to discuss. The Court rejected this argument, noting that in the “close-knit school board community” it is likely the Superintendent will be aware of what the proposed speaker aims to discuss. Furthermore, a speaker on behalf of an organization would also alert the Superintendent to what he or she was likely discuss.

Thus, even though the policy was on paper content-neutral, there was still discretion given to the Superintendent to deny potential speakers because of the content of their speeches. There were no policies in place to prohibit the Superintendent from inquiring into a speaker’s speech content. As a result, the requirement to schedule a meeting with the Superintendent posed enough of a risk that speech would be chilled or effectively censored based on content or viewpoint to be unconstitutional.

The takeaway here is that any policy of a public organization which regulates public speaking may be unconstitutional if there are no checks in place to prevent a permit from being denied on the grounds of content. Walker County’s policy placed too much power in the hands of its Superintendent.

If you believe your constitutional rights are being infringed upon, you should have an experienced, knowledgeable attorney on your side to ensure your constitutional rights are protected. Contact INGRAM LAW LLC at (205) 335-2640for an attorney with the experience and knowledge that can make all the difference.


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