Page v. Lexington County Sch. Dist. One, No. 07-1697 (4th Cir. Jun. 23, 2008)
The U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) has ruled that a South Carolina school district did not engage in impermissible viewpoint discrimination under First Amendment’s Free Speech Clause when it refused to use its own information systems to point to information supporting private school choice. When Lexington County School District One (LCSD) used various means to communicate its opposition to voucher legislation known as the "Put Parents In Charge Act" (PPICA), PPICA proponent Randall Page requested "equal access" for pro-voucher materials. The district refused, indicating that the information it was disseminating was its own and denying that it had created some kind of "right of equal access" for others to present their views. Mr. Page sued in federal district court, claiming LCSD had opened one or more public fora and engaged in impermissible viewpoint discrimination. In an initial order, the district court analyzed each of the various components of the informational distribution system and ruled for the school district as to all but the website and the PTA newsletters. The court later ruled that LCSD had not violated Mr. Page’s free speech rights as to these means, concluding that LCSD’s information constituted “government speech” and that its informational distribution system was not a public forum to which Page was constitutionally entitled to access.
The Fourth Circuit affirmed. Whether the school district’s campaign was “government speech” that was “exempt from First Amendment scrutiny” depended on “the government’s ownership and control of the message, and the government’s ownership and control of the message may be determined from consideration of various factors,” the appeals court noted, citing the factors distilled in Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005). Applying the first factor—the establishment of the message—the Fourth Circuit found that the LCSD school board had established its message of opposition to PPICA and had directed school district officials to communicate that position to employees, legislators, students, and the public at large. As for the second factor—control of the message—while conceding the school district did not itself create all the content of every communication, the court emphasized that LCSD adopted and approved all speech, even that of third parties. In this sense, LCSD’s speech was “strikingly analogous” to what was deemed to be government speech in Johanns. The court rejected Mr. Page’s argument that LCSD had maintained inadequate control over its communications and had thereby created a limited public forum from which he could not be excluded on the basis of his viewpoint.
Focusing on the website, the Fourth Circuit pointed out that Mr. Page’s argument depended on the “implied conclusion that by including a link to another organization’s website, the School District made the contents of that other website part of its own website.” This premise was found wanting because LCSD: (1) selected the other websites based on their support of LCSD’s message in the absence of any evidence that the owners of those websites had solicited LCSD; (2) maintained total control of its website, retaining the right and ability to delete a link at any time; (3) never incorporated the materials from the other websites as its own, but merely provided information on sites supporting its position and the links; (4) consistently maintained its message of opposition to PPICA and provided references to others who shared that opposition, in the same manner that a citation, footnote, or bibliography would; and (5) provided a clear disclaimer of the contents of any linked website. The court therefore concluded that LCSD “sufficiently controlled this channel of communication so that its speech remained government speech and it did not create a limited public forum by including links to other websites.” The same held true for LCSD’s e-mail facility.
Turning to the PTA newsletters, the court acknowledged that it “may be true that by editorially controlling the newsletter, the individual school may have created a limited public or nonpublic forum because the speech in the PTSA newsletter was not the government’s own speech, but speech of the [PTA].” However, Mr. Page had not demonstrated that he was “within the class of persons who was, by design, accorded access to that forum.” As to any other distribution systems used by LCSD, they were at most limited public or nonpublic fora, and LCSD’s restrictions “were surely reasonable in the context of a public school.”
Lastly, the court rejected Mr. Page’s argument that the government speech doctrine should never apply where the government attempts to influence legislation because in such a situation the government’s position is not “checked by the ballot box,” the traditional justification for the doctrine. In fact, the “ballot box” does serve as a check here, the court found, because school board members are elected and susceptible to being removed at the next election if the voters disagree with them. Second, “government speech almost always supports a given policy objective and ‘[t]he government is entitled to promote particular messages’ ” and it is “appropriate for the School District to defend public education in the face of pending legislation that it views as potentially threatening of public education.” The court also noted that “many courts have rejected First Amendment challenges to government speech involving advocacy regarding ballot measures,” and while this case instead involved legislation, the court found that the grassroots lobbying present here raised “no greater concerns from a democratic accountability standpoint than advocacy regarding measures on the ballot.”
Page v. Lexington County Sch. Dist. One, No. 07-1697 (4th Cir. Jun. 23, 2008)
[Editor’s Note: Background on the case is below, including a summary of the district court’s opinion and the amicus brief filed by NSBA, the American Association of School Administrators, the National League of Cities, the National Parent Teacher Association, the National School Public Relations Association, and the state school boards associations of South Carolina, North Carolina, Virginia, and Maryland. Lead author on the brief was Helen L. Norton, associate professor at the University of Colorado School of Law, with additional pro bono help from Kenneth L. Childs and John M. Reagle of Childs & Halligan, P.A., in Columbia, SC. The State reports that the attorney for Mr. Page, Kevin Hall, indicates he will ask the entire Fourth Circuit to reconsider the three-judge panel’s decision. The article also quotes David Duff, the school district’s attorney, as saying, “The whole suit, frankly, was intended to chill the advocacy of school districts—aside from the legal issues.”]
NSBA School Law pages on Page v. Lexington County Sch. Dist.
The State, 6/24/2008, by Bill Robinson