Page v. Lexington County School District One before the 4th Circuit Court of Appeals – Background Briefing
Case at a Glance
Randy Page filed suit in U.S. District Court against Lexington School District One ("the District") for violation of his First Amendment right of freedom of expression in a public forum. The District had used its publicly-funded information distribution system to criticize proposed school choice legislation in South Carolina, the “Put Parents in Charge Act”, and to engage in widespread distribution of propaganda against the issue. Page sought access to that system to present his views in favor of school choice, and the lawsuit stems from the District’s refusal to grant Page’s request for access to that forum.
The District has conceded that it discriminated against Page solely based on his viewpoint favorable to school choice when his request for access was denied to the public forum that had been created by the District. The District has maintained that these communications constitute government speech as opposed to private speech, which would allow it to choose its own message and exclude opposing views.
Page contends that the District has engaged in impermissible viewpoint discrimination and has thus violated Page's constitutionally guaranteed right to express his opinions in a public forum.
Chronology
This action was initially filed in January 2006 in the U.S. District Court in South Carolina, and the School District responded by filing a motion to dismiss. The Court denied the motion to dismiss and allowed limited discovery as to the "government speech" vs. "public forum" issues in this case.
After limited written discovery and one deposition of the District's Director of School/Community Relations, the Plaintiff attempted to engage in additional discovery in accordance with the Court's order, but the District filed a motion for protective order to prevent such further discovery. The Court initially granted the District's motion for protective order, but upon further review of Page’s motion for reconsideration, the Court granted Page’s request in part for additional discovery.
Following another round of limited discovery, the District filed a motion for summary judgment. In January 2007 the Court issued an order granting in part and denying in part the District's motion.
In ruling on the motion, the Court decided that the crucial question was this: Did the District create a forum where they were required to exercise viewpoint neutrality, or did the District merely engage in government speech that gave rise to no right of access even when they discriminate based on viewpoint? For purposes of deciding if the District created a forum, the Court treated each mode of communication utilized by the District individually, rather than as a collective system.
Using this analysis, the Court decided that the District did not create a forum and was merely engaging in government speech when it communicated its positions via the following methods:
1. The District's email network
2. The District's flyers
3. Static documents on the District's website
4. Government Relations Committee meetings
5. The District's fax machines
As a result, the Court granted summary judgment in favor of the District as to these five modes of communication, finding that no forums were created in these components of the District's communication system and that no First Amendment violation occurred when the District employed viewpoint discrimination in these methods of communication.
Importantly, in this grant of summary judgment, the District Court conceded that the School District had admittedly denied Page access to the forums because of his viewpoint.
On the other hand, the Court denied summary judgment as to the following two modes of communication, finding that a question of fact existed as to whether the District created a forum for expression of views via:
1. Links to other active websites on the District's website
2. School newsletters that disseminate PTA-sponsored documents
The Court allowed additional limited discovery to determine if a public forum had been created or if Page's equal access had been denied unconstitutionally with regard to these two modes of communication. Both parties filed cross motions for summary judgment on the remaining claims, and the District’s motion was granted.
The Court ultimately ruled on July 20th, 2007 that the District did not violate Page’s right to freedom of speech by refusing to link his information on the District’s website or to distribute it in the District’s PTA newsletters. However, the Court committed an about-face from its initial summary judgment to the final ruling with regard to the District’s concession of viewpoint discrimination, and qualified it as if the District had not actually admitted to viewpoint discrimination.
It was found that the links posted on the District’s website were government speech and thus were not subject to forum analysis based on viewpoint discrimination.
Even though the District itself conceded that Page’s request had been denied based on his viewpoint, the Court ruled that no forum had been created by the website links because the District had decided to link the websites of the South Carolina School Boards Association and Choose Children First without solicitation, the links were intended to promote the District’s own message, and they were monitored by the District to maintain consistency of message.
In addition, the Court ruled that the “link itself” was the only content that is subject to Page’s First Amendment claims, and not the content of the websites themselves, which was another about-face by the Court, which had initially ruled that the relevant speech was the content of the websites themselves.
On the other hand, the Court found that the District’s newsletters did not satisfy the government speech test, because the District had not “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.” The Court ruled that the newsletters did constitute a public forum, but that the forum could be limited to those groups directly or closely affiliated with the District, like the PTAs and booster clubs.
The Court concluded that the District had acted reasonably in creating a public forum open only to District-affiliated groups, and that Page’s views could be excluded from the newsletters without engaging in viewpoint discrimination.
Summary of Arguments
Page then filed an appeal to the 4th Circuit Court of Appeals based in Richmond, VA, to be heard on March 20th. In his brief, Page asserts:
§ The government-speech doctrine provides no defense for the District utilizing public resources to lobby the citizenry for a legislative outcome without giving equal access to other dissenting viewpoints. To allow otherwise would essentially enable the government to engage in wholesale propaganda and to squelch dissenting views, a clear violation of viewpoint neutrality in a public forum.
§ The government-speech doctrine is an insufficient defense when the ballot box remedy is unavailable as a check on the government-sponsored speech, which was a call to action to the citizenry not unlike those sent out by third-party groups to achieve a legislative outcome by telling citizens to contact their legislators.
§ The District Court had improperly applied the government-speech doctrine as a defense against Page’s First Amendment claims, misapplying the Johanns v. Livestock Mrkting. Ass’n test and not even utilizing the more expansive and demanding SCV, Inc. v. Commissioner of the VA DMV test. Page argues that both tests applied properly would fail to uphold the conduct of the District.
§ The District Court’s ruling, if upheld, would allow the government to do an end-run around First Amendment requirements of viewpoint neutrality by invoking the government-speech doctrine. This would leave no meaningful boundaries to the doctrine, a grave danger to First Amendment protections of public forums. It would also lead to confusion in the marketplace of ideas, with citizens unable to ascertain if the speech communicated by the government was actually that of the government or if third-party materials which were distributed were yet approved by the government.
§ The District’s guidelines for linking to its website and getting published in its newsletters do not provide sufficient safeguards to uphold the principles of the public forum, and amounts to a facial violation of the First Amendment. That is because there are not clear and objective standards.
Rather, approval for publication on the website or in the newsletters is done arbitrarily by a government official based upon whether or not the official agrees with the content’s viewpoint. Such policies allowed to stand would allow the District to tilt public opinion in favor of their institutional interests by only allowing views favorable to the government’s views to be published.
§ The District Court’s ruling demonstrates the overwhelming need for having definitive and objective public forum access policies, because otherwise the government could just concoct post hoc rationalizations for otherwise unconstitutional instances of viewpoint discrimination.
This is proven by the District Court first acknowledging that the School District had admittedly engaged in viewpoint discrimination in its first summary judgment in barring Page access to the five forums mentioned above that was protected by the government-speech doctrine, but in its second summary judgment attached an unsubstantiated rationalization for denying him access to the take-home materials, stating that the District could do so because he did not fall “within the category of individuals for whom this forum was available.”
§ The Court similarly and wrongly upheld the District’s denial of forum access to the PTA newsletters because Page was not an officer or member of the PTA within the District. Allowed to stand, the District Court’s ruling would essentially legitimize a court attaching post hoc reasons for viewpoint discrimination that the District itself had never argued for.
As noted in the Appellant’s brief, “Rather than accepting the District’s admission of viewpoint discrimination, the trial court attempted to find constitutional justifications for the District’s conduct. Those justifications, however, also fall short of the constitutional minimums for excluding a speaker from a forum to which others have been granted access.”
Ramifications – What’s at Stake in this Case
The potential impact of success in this litigation on the effort to curb the education establishment's use of public resources to engage in political activism cannot be overstated.
If Page is ultimately successful in this lawsuit, it will effectively choke off the ability of schools to engage in this type of political activism without having to provide equal time and equal access to those with differing views. School districts across the country have long used their extensive communication networks as a conduit for favored left-wing organizations, allowing such groups to distribute their messages through the schools' publicly-funded channels of communications.
The education establishment has also used its resources as a means to lobby legislatures and distribute propaganda against school choice initiatives and other measures that they perceive as threats to their monopoly power. In South Carolina, the State Department of Education and the various school districts across the state effectively used publicly funded mechanisms of communication to protect the power base and to fend off challenges to its public school monopoly.
The education establishment does not want to give equal time to its political opponents and will avoid doing so at all costs. Defeat in this litigation will force school districts to severely restrict or completely eliminate their political activities. Page’s opponents in this litigation recognize that their communications are in danger of elimination, which is one reason why Lexington School District One has fought so hard to prevent Page from accessing its communication system.
A victory for Page could set up a new precedent whereby government communications which are used to propagate government views on legislative or electoral issues would be open to the public to comment on via those same communications systems. No longer would school districts have a taxpayer-funded monopoly for lobbying and influencing the debate on education without at least opening the same public forums to citizens with differing views.
Government speech doctrine, a relatively new element of First Amendment jurisprudence, is being used by school districts and other parts of the government to insulate and isolate their views from criticism. This case seeks to overturn this dangerous doctrine. It will have ramifications for government communications nationwide. It should be held that if the government wants to promote its views on a legislative issue or election that this in itself creates a public forum which is accessible by the general taxpaying public to comment on the same issues.
Ultimately, taken to fruition, this case will dismantle the government’s vast propaganda machine, and end its flagrant attempts to indoctrinate the public at taxpayer’s expense.
