Can the Arkansas State Board of Education prohibit people from publicly ridiculing its members? It’s trying to. At last Thursday’s meeting, the board’s attorney repeatedly read a statement warning audience members that they could be removed from the meeting for speaking out of turn, asking questions, or “singl[ing] out a particular member or members for ridicule or harassment.” The statement further advised that the board would deviate from its written operating procedures regarding public comment on LRSD items and would implement a separate procedure governing only speech on those items.
The threat of having audience members removed from the meeting was taken seriously by many in attendance: There were police officers posted at the boardroom doors, and the State Board has had LRSD supporters removed from every recent meeting. While some people have been removed for acts of civil disobedience intended to disrupt the proceedings, at least one person has been removed for merely asking to be allowed to make public comments on an agenda item for which she signed up to speak. The State Board also recently refused to allow any public comments before a vote on a contentious issue, and to add insult to injury, the official transcript for the November meeting omits the audience’s public comments made during the designated public-comment period at the end of the meeting.
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On Thursday, the State Board’s new policy had its intended effect, as speakers acknowledged during their comments that they had “removed the names” of board members from their prepared remarks in order to comply with the new rule. Others who had signed up to speak huddled in the hallway and discussed amongst themselves whether they would be punished for criticizing the board as a whole, asking rhetorical questions or making pointed comments without actually mentioning a board member’s name. In the realm of First Amendment free-speech law, this is called a “chilling effect.” Whether or not the new policy is ever enforced, simply announcing it at the December meeting has already caused harm because the threat of enforcement has stifled the expression of protected speech.
And make no mistake, we are talking about protected speech. In New York Times v. Sullivan (1964), the United States Supreme Court recognized America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The right to criticize our government is at the very core of the First Amendment protections for free speech, and for very good reason.
In England in 1634, printer John Twin was convicted of treason for possessing proofs of a book critical of the king. He was hanged, drawn and quartered. In contrast, our First Amendment protections were developed to allow the people to serve as an important check on government power. The First Amendment contains several separate guarantees. In addition to the two religion clauses and its protections for free speech, it also guarantees a free press and protects “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Since our nation’s founding, pure political speech made in a public forum and intended to either sway public opinion or persuade government actors has received the highest level of constitutional protection. That is exactly the kind of speech that the State Board’s new policy infringes upon.
When discussing this issue with friends and neighbors, I have been surprised to find that a few people have said they are fine with the State Board’s new policy because they believe that singling out board members for criticism and ridicule would be unwise or at the very least unpleasant. We can probably all agree that it would likely be uncomfortable not just for the board members but for everyone in attendance. As Southerners who have been raised to value manners and hospitality, and as human beings who have empathy for others, the idea of being intentionally cruel or mean to anyone, even a member of the State Board, is deeply unsettling. I think there is also a fair debate to be had as to whether it is a smart tactic for LRSD supporters to single out individual board members for personal attacks because doing so will anger the very people who hold the fate of our district in their hands and might also alienate potential supporters who would otherwise be sympathetic to our cause but would be turned off by such tactics. For those reasons, a few folks have told me that they don’t have a problem with this new policy and don’t think it is a very big deal. In their mind, prohibiting speakers from singling out board members for ridicule and harassment might help the State Board meetings run more smoothly, and they ask, “What’s the harm in asking everyone to be a bit more civil?”
There are two reasons why I disagree and think the State Board’s policy is a very big deal. First, I am angered that any government entity in our state would so cavalierly flout the limits and principles of the United States Constitution. I won’t try to conceal my own personal bias here: I love constitutional law so much that after law school I got an LL.M. degree in constitutional and civil-rights law from American University, and I periodically teach First Amendment free-speech law at Bowen law school and Hendrix College. So I will acknowledge that this issue probably matters more to me than to the average person. But I think the State Board’s blatant and unconstitutional attempts to silence speech critical of its members should anger everyone.
The general rule governing free speech is that it is protected unless it falls within one of the very few categories of unprotected speech: obscenity, defamation, fighting words, incitement to imminent lawless action, true threats, blackmail and perjury. When it comes to speech critical of government officials, the Supreme Court has held that the First Amendment protects “all statements, even false ones, about the conduct of public officials” unless the speaker acted with “actual malice.” (NY Times v. Sullivan). “Actual malice” means that the speaker knew the statement was factually false or acted with “reckless disregard for the truth.” That means that both harshly critical opinions and even erroneously false statements of fact about public officials are protected by the First Amendment.
There is no “be nice” exception in the First Amendment. If a person says something cruel or offensive, he or she will have to live with the personal, professional and social repercussions of that decision, and those pressures go a long way to maintaining civility and decency. But the government cannot dictate civility (just ask Paul Robert Cohen, who was arrested in 1968 for wearing a jacket saying “F*ck the Draft,” took his case to the U.S. Supreme Court, and ultimately succeeded in overturning California’s law prohibiting offensive language). While a government entity such as the State Board may genuinely desire to encourage calm and civil discourse because it believes that doing so will allow for more substantive and thoughtful debate on the issues, our government is not permitted to decide for us whether we should be angry enough to be speak uncivilly. The late Justice William O. Douglas said it best in his dissent in Colten v. Kentucky (1972):
Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet.
Beyond mandating civility, the State Board’s new policy is a form of prohibited viewpoint discrimination. It allows speakers to single out board members by name for praise and accolades but not for ridicule. Governments simply are not allowed to disfavor or prohibit offensive speech. In the recent case of Iancu v. Brunetti (2019), Justice Elena Kagan stated that “a law disfavoring ‘ideas that offend’ discriminates based on viewpoint in violation of the First Amendment,” and lest you think that this is a partisan issue, conservative Justice Samuel Alito said in the same case that “viewpoint discrimination is poison to a free society.” Simply put, we have a well-established right to criticize public officials, even if that criticism is intensely harsh or caustic and offends people. We also have a right to ridicule. (For an entertaining example, look up the case of Hustler Magazine v. Jerry Falwell from 1988 to see just how effective ridicule can be as a form of political commentary). The State Board, therefore, cannot constitutionally prohibit one protected viewpoint (ridicule of board members) while allowing its opposite (praise of board members). I am fairly disgusted that they would try.
I also think this restriction is a big deal for a second reason, which is that prohibiting speakers at the State Board from singling out individual members for criticism robs everyone of the benefits of being able to discuss and consider all relevant parts of these issues. One very important basis for protecting free speech is the concept of the “marketplace of ideas.” This theory holds that, if all ideas and viewpoints are allowed to be freely expressed, the public will naturally weigh each idea’s respective merits and superior ideas will ultimately win out in the court of public opinion. John Stuart Mill in “On Liberty” in 1859 wrote that:
The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: If wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
That may seem like very lofty language when talking about whether local LRSD advocates should be allowed to criticize members of the State Board of Education, but the underlying principle is exactly the same. In order to have a full and fair debate on any issue, no idea can be off limits. The State Board’s new policy prohibits discussion of relevant issues, making it much harder for the marketplace of ideas to play out as it should.
For example, a speaker would not be allowed to point out that while board-member Chad Pekron says he is in favor of returning the district to full local control and criticizes board chair Diane Zook for “micromanaging” the district, he is also the leading voice advocating for indefinite restrictions on our elected school board and he continues to vote in favor of micromanaging motions like renaming the new West High School. The current board policy prohibits speakers from calling out Pekron’s hypocrisy and challenging him to be more intellectually honest in his positions.
Likewise, several speakers have continued to draw attention to the outsized influence that so-called “education-reform” groups have had on the board’s decisions about LRSD, but under this policy they are not allowed to mention that Mrs. Zook’s very close family ties with the “education-reform” movement. We are also not allowed to point out that Dr. Sarah Moore continues to make surprise motions, such as her most recent motion to fire all teachers and staff at Hall High, even after she has given lip service to the importance of public notice, public input and rebuilding trust between the board and the LRSD community. The marketplace of ideas cannot function if LRSD speakers are barred from expressing to Moore that her own actions continue to contribute to our resentment and distrust of the State Board.
We aren’t talking about poking fun at how the board members look. We aren’t saying they smell bad. We are talking about whether the public will be prohibited from criticizing the members’ official actions on the Arkansas State Board of Education. That should be — and is — protected by the First Amendment (and also the Constitution of the State of Arkansas). Either the State Board is egregiously ignorant of the constitutional limitations on what it may do, or it doesn’t care. Either way, we should all be concerned.
So, while many of us don’t like personal attacks and find them incredibly distasteful, they are unquestionably protected speech. What sets America apart from authoritarian regimes is our commitment to the idea that dissent is valuable and should be protected. Unlike in North Korea or Saudi Arabia, we can ridicule our government officials without being hauled away by the police. Except, apparently, at the Arkansas State Board of Education.