Better News From the Courts

Today the 8th Circuit Court of Appeals decided Cajune v. Independent School District 194. That school district is immediately adjacent to the one where my kids went to school, and plaintiffs were represented by the Upper Midwest Law Center, on whose board I serve and which has often (albeit wrongly) been described as an “arm” of the policy organization that I run. Briefly, plaintiffs claimed that the school district engaged in viewpoint discrimination in violation of the First Amendment when it posted “Black Lives Matter” posters in classrooms, but refused a request to also post “All Lives Matter” and “Blue Lives Matter” posters.

The 8th Circuit reversed the trial court’s Rule 12 dismissal of plaintiffs’ case, and remanded the case for further proceedings. So plaintiffs haven’t won yet. The school district’s principal defense is the “government speech doctrine,” which seems to post-date my law school training. The government speech doctrine holds that a governmental unit can engage in endless propaganda, as long as it is speaking on its own behalf. The remedy is at the ballot box.

Here, the court held (somewhat dubiously, I think) that the school district’s approval of Black Lives Matter posters could be considered, on a view of the facts most favorable to plaintiffs, as required in a motion to dismiss, as private rather than government speech. That led inexorably to the conclusion:

Having created a limited public forum, the District could not discriminate against speech on the basis of its viewpoint. According to the District, however, it rejected Cajune’s request because the phrases “All Lives Matter” and “Blue Lives Matter” were created specifically in opposition to “Black Lives Matter. That was impermissible viewpoint discrimination in that the rationale for the restriction was prompted by what the District viewed as the speaker’ “motivating ideology” or their “opinion or perspective.” Citation omitted. Therefore, we conclude that the plaintiffs have shown that success on their First Amendment claim is more than a “sheer possibility.”

It is not a total victory, but we will take it. The court’s opinion reflects the difficulties that citizens will encounter in protesting discrimination against dissenting speech by government units or agencies.

Here is the Cajune decision:

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