An excerpt from yesterday’s Sixth Circuit decision (which I think is generally quite correct) in Boddy v. Grech, written by Judge Richard Allen Griffin, joined by Judges John Bush and John Nalbandian:
During a public comment period of a Xenia School Board meeting, plaintiff Darbi Boddy attempted to express her views regarding the school district’s alleged teaching of critical race theory. In prepared remarks, delivered in a calm and deliberate manner, Boddy took issue with the “cowardice” of the school district’s superintendent and characterized the Board as “failing.”
Displeased with the speech, Board president Mary Grech threatened to turn off Boddy’s microphone. Forty seconds later, as some in the audience became disruptive in reaction to Boddy’s remarks, defendant Grech abruptly seized Boddy’s microphone and recessed the meeting. Boddy was denied her allotted five minutes of public comment, and she was not offered any additional time to address the Board when the meeting resumed….
[Boddy] addressed the Board calmly and deliberately:
My name is Darbi Boddy and I live in West Chester. I am a previous Board of Education member for the Lakota School District; I am on the board of Protect Ohio Children and represent the southern part of Ohio and the organization responsible for the heat map. I am also a leader for Moms for America in Butler County. I recently heard about the failing Xenia Board of Education and the cowardice [sic] superintendent who cannot perform adequately in his role ….
After speaking for only twenty-eight seconds, president Grech interrupted Boddy, shouting “Excuse me!” Boddy, however, continued. Quickly, Grech again yelled, “Ma’am, excuse me I will cut your mic.” Undeterred, Boddy continued to methodically read from her prepared remarks:
This superintendent reprimanded the one good board member who was doing [his] due diligence and asking questions so he could better understand the teaching environment, make educated decisions to determine what is best for the students of Xenia and therefore help create an educational environment free of racism and division, as is his job per ORC and school policy. It appears quite obvious this board and superintendent do not advocate for transparency and want to continue pushing racist and divisive ideologies to the children of Xenia and indoctrinate them into an anti-American agenda ….
At this point, some in the crowd began to heckle Boddy with loud boos, which continued for approximately fifteen seconds.
About a minute and twenty seconds into Boddy’s remarks and amid loud boos, Grech moved to recess the meeting, which another Board member quickly seconded. Yet Boddy continued to speak. A few seconds later, Grech walked up to the podium and took the microphone away as Boddy was speaking. Some in the crowd cheered; others jeered and booed. Boddy continued speaking, without a mic, as the Board shuffled out of the room. Although Boddy was prevented from using her allotted five minutes of public comment, the Board did not offer Boddy any additional time to finish her remarks after the recess.
The court concluded that Boddy’s speech didn’t fall within any First Amendment exception:
Boddy’s use of “failing” and “cowardice” do not constitute fighting words. Nor was her speech obscene, as it did not appeal to a “shameful or morbid interest in sex.” She did not utter any “threatening, profane or obscene revilings” either….
And even if Boddy’s speech was offensive, the First Amendment protects this kind of speech. A contrary rule would permit “a majority to silence dissidents,” and allow the government to ban “the expression of unpopular views.” … “The government may not censor speech merely because it is offensive to some.” Even seemingly neutral rules that ban “attacks on people or institutions” “could be considered viewpoint discrimination.” And regardless of the forum, viewpoint discrimination is impermissible.
The court rejected the district court’s “characterize[ing] some of Boddy’s speech as an ad hominem attack not protected by the First Amendment”:
First, we have never held that an ad hominem attack is per se unprotected speech…. Nor has the Court held that ad hominem attacks are without First Amendment protection….
Second, as a factual matter, Boddy’s speech was not an ad hominem attack. Boddy was criticizing the Board and superintendent for their policy choices as public employees. An ad hominem attack is a “personal dig or affront … [or] the criticism of an adversary’s character as opposed to the substance of the adversary’s arguments.” Boddy’s speech was not personal or related to the character of any individual Board member. She did not address any member by name and merely characterized the Board as “failing.”
And even the use of “cowardice” to describe the superintendent’s actions was related to his performance in his public facing role. “Freedom to criticize public officials and expose their wrongdoing is at the core of First Amendment values.”
The court concluded that the restriction was viewpoint-based, and not based on application of neutral “decorum” rules:
Grech’s justification for cutting Boddy’s speech reveals that she curtailed Boddy’s speech because she shared viewpoints critical of the Board…. Grech testified that she made the threat to cut the microphone because Boddy “was starting down the path of calling [people] names.” But we condemned this precise rationale in Ison as impermissible viewpoint discrimination. Although Grech claimed later that she admonished Boddy because of how she was speaking, not because of what she was saying, the district court erred to the extent that it credited this portion of her testimony because the record shows otherwise.
First, consider the idea that Grech cut off Boddy because of her hostile tone. As the district court found—and the video evidence confirms—Boddy’s tone and demeanor were objectively professional and consistent with proper decorum. So this first rationale is no help to defendants. Second, that some of Boddy’s speech was directed at Lofton alone does not make it unprotected.
Third, the video shows that Boddy did not incite the crowd. To the contrary, Grech acknowledged that her threat to cut the microphone may have riled up the crowd. The video corroborates this understanding. And the district court similarly found that Grech, not Boddy, may have incited the crowd….
Grech’s other testimony regarding Amber Boddie’s reprimand is also problematic because it suggests that speech critical of the Board would violate the decorum rule, but speech praising the Board would not. The Board “may not exclude speech merely because it criticizes school officials.” …
And the court held that the government’s actions unconstitutionally “perpetuate[d] a heckler’s veto”:
“Of course, the First Amendment generally does not allow speech to be restricted because of some enthusiastic audience members’ reactions.” … Rooted in the idea that the government cannot favor one citizen’s speech over another, we have held that speech “does not lose its protection under the First Amendment due to the lawless reaction of those who hear it.” And “[p]unishing, removing, or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose.”
In Bible Believers, a group of anti-Muslim evangelists attended Dearborn’s Arab International Festival with the goal of converting patrons with their offensive and anti-Muslim messages. At the event, the group was surrounded by “youthful hecklers” who began throwing “bottles and other garbage at the Bible Believers.” The police officers’ focus was on the evangelists, and they asked that the group stop using their megaphone to amplify their controversial speech. We held that the police officers “effectuated a heckler’s veto by cutting off the Bible Believers’ protected speech in response to a hostile crowd’s reaction.”
Although Bible Believers concerns a heckler’s veto in the context of a public forum with police as the relevant government actors, several important throughlines surface regardless of the forum at issue. When a “peaceful speaker” engages in protected speech and “is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals.” Nor can the government “sit idly” by as the crowd imposes a “tyrannical majoritarian rule.” It should “take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker.”
We have yet to apply the heckler’s veto to a limited public forum, but its application flows logically from our First Amendment jurisprudence. After all, a heckler’s veto theory is another way to show impermissible viewpoint discrimination—which is improper regardless of the forum at issue. As the Ninth Circuit has explained, a “claimed fear of hostile audience reaction could be used as a mere pretext for suppressing expression because public officials oppose the speaker’s point of view.” Situations could arise “where the asserted fears of a hostile audience reaction are speculative and lack substance, or where speech on only one side of a contentious debate is suppressed.” Similarly, the Third Circuit has suggested that a heckler’s veto theory hinges on whether the government’s actions were based on the content of the speech.
Under this framework, the heckler’s veto test turns into a fact-bound test for viewpoint discrimination—here, whether Grech used the disorderly crowd as a pretext to stifle Boddy’s speech. The facts suggest that Grech sanctioned a heckler’s veto and in fact gave rise to it. Boddy shared an unpopular view, and some in the crowd tried to shout her down. Grech made no effort to quiet the crowd before moving for a recess. She also testified that she may have helped rile up the audience when she threatened to cut the mic.
As in Bible Believers, the government actor did not protect the speaker from the crowd but silenced the speaker in an effort to maintain decorum. And because of the forum, Grech had more control over the proceedings than an officer on the street. The Board’s policies empowered Grech to regulate the meetings for reasonable decorum, and she could have used her authority to quiet the crowd instead of Boddy. Instead, she threatened to cut Boddy’s microphone and then did just that. Further, Boddy was not offered the opportunity to finish her speech after the recess. So Boddy can show a likelihood of success on the merits under her heckler’s veto theory as well.
Curt Hartman represents plaintiff.
