Page v. Lexington County Sch. Dist. One, 2007 WL 2123784 (slip copy D. S.C. July 20, 2007)
A U.S. district court in South Carolina has ruled that a school district did not violate a private school voucher advocate’s free speech rights by declining to link to his information on the district’s website or disseminate it in PTA newsletters. Lexington County School District One had communicated its opposition to voucher legislation known as the "Put Parents In Charge Act" (PPICA). Randall Page, a PPICA proponent, requested "equal access" to the district’s informational distribution system. The district denied his request on the ground that the information it was disseminating was its own and did not create "a right of equal access" for others to present their views. The district informed Mr. Randall that it "did not permit the distribution of any type of outside information or materials which do[es] not directly promote educational, recreational or cultural activities that would be of interest to students or their parents." Mr. Page sued, claiming that the school district had opened one or more fora and engaged in impermissible viewpoint discrimination. In an initial order, the court analyzed each of the various components of the informational distribution system and ruled for the school district on all but these last two.
Having allowed further discovery as to the newsletters and the website links, the court first stated that the key question was whether the speech disseminated by the district was government speech or private speech. Government speech doctrine is a relatively new, the court acknowledged, and its limits imprecisely defined. However, based on the U.S. Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005), the court found it is clear that speech will be considered government speech, even when drafted and presented by a third party, if the government (1) determines an overarching message, and (2) approves every word disseminated at its behest. Subsequent Supreme Court decisions, the court noted, have confirmed the principle that the government retains "discretion to promote policies and values" of its own choice without its decisions being subjected to forum analysis or viewpoint scrutiny, even when it chooses a third party speaker to convey the message.
The newsletters did not satisfy the test for government speech, the court held, because the evidence did not support the conclusion that the district "established the ‘overarching message’ which was presented in the PTA newsletters or even gave general direction to the PTAs as to the subjects to be addressed in their newsletters." Instead, the court concluded the school district had created either a non-public or "designated public" newsletter forum limited to groups closely associated with the schools, such as PTAs and booster clubs. As a matter of law, the court concluded, the school district had acted reasonably in creating a forum open only to such groups. Because Mr. Page did not fall within this category of speaker, the district could exclude his message without engaging in viewpoint discrimination.
As for the website links, the court concluded that any information disseminated was government speech not subject to forum analysis or judicial scrutiny based on viewpoint discrimination. Although the district conceded it had rejected Mr. Page’s request based on his viewpoint, it had decided to link to the websites of the South Carolina School Boards Association (SCSBA) and Choose Children First (CCF) without any solicitation from those parties. Based on four factors set forth in other court decisions, the court held that the government speech doctrine applied to the links: (1) they were not created based on any third-party request; (2) they were intended to further the district’s message, at least to the extent they were based on the PPICA-related message; (3) they were created based on the judgment of a district employee that the link would aid in advancing the district’s message; (4) they were monitored, albeit occasionally, for consistency of message. Given the minimal guidance by higher courts in this area, the court went on to apply the two-pronged Johanns test as well, finding that both the SCSBA and CCF links supported the district’s overarching message and that, while the school district could not approve every word that would appear on these websites, it did retain complete control over whether to link to the sites.
Page v. Lexington County Sch. Dist. One, 2007 WL 2123784 (slip copy D. S.C. July 20, 2007)
[Editor’s Note: The decision is being appealed to the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV).]