The Pennsbury School Board voted Thursday evening to settle a free speech lawsuit that gained national attention.
The school board voted to settle the lawsuit brought forward by Lower Makefield Township residents Tim Daly, Simon Campbell, Doug Marshall, and Robert Abrams. The four said Pennsbury and several of their officials violated their First Amendment rights by cutting them off, not allowing their comments, and editing their statements from video recordings of school board meetings.
The settlement agreement, which is being paid for by the district’s insurance company, will pay $237,590 to the Institute for Free Speech, which represented the men; $62,410 to Montgomery County law firm Vangrossi & Rechuitti; and $17.91 to each of the four plaintiffs for damages.
The Institute for Free Speech said in a statement the $17.91 in damages was a symbolic gesture to mark the year the First Amendment was ratified.
The lawsuit claimed school district officials violated the First Amendment by restricting public comments made at board meetings. It stated “Pennsbury’s board members and officials set out to censor citizens whose political views they despise.”
The complaint was filed after Pennsbury was caught editing public comments from the March 2021 and May 2021 meetings.
The lawsuit pointed to times when Pennsbury shut down public comments that criticized the district and board, citing several incidents in 2020 and 2021. The filing mentions the February 2021 meeting where the board declined reading public comment, a break from their standard practice.
Following the lawsuit and an injunction from a federal judge, the district junked board Policy 903 that allowed officials to stop comments they perceived as “personally directed,” abusive,” irrelevant,” offensive,” “otherwise inappropriate,” or “personal attacks” from being enforced. The school board is also changed Policy 922 that allowed officials to stop comments they believed were “offensive,” “inappropriate,” “intolerant,” “disruptive,” and “verbally abusive.”
The Institute for Free Speech cited the changes to school board policy and removal of law firm of Rudolph Clarke as solicitor as factors in the decision to settle and not take the case to court.
“School boards across the country should take note. Rules for public comments must respect the First Amendment rights of speakers. If you are limiting which opinions may be shared, you’ll be held liable for violating First Amendment rights,” said Alan Gura, vice president for litigation at the Institute for Free Speech, a Washington D.C. organization that focuses on First Amendment issues and made a name fighting to deregulate election.
“Rules for public comment periods are meant to maintain time limits and protect each speaker’s right to be heard, not police which viewpoints are expressed. Pennsbury’s rules were so vague and subjective that the board could effectively shut down any speech they didn’t like, and that’s exactly what they did,” said Del Kolde, a senior attorney at the Institute for Free Speech.
“School boards may restrict comments that exceed the allotted time limit or make true threats, but they may not censor speech based on its viewpoint. Citizens in Pennsbury and all across Pennsylvania can now speak freely without fear of arbitrary censorship,” read the statement from the Institute for Free Speech.
School board members didn’t comment on the settlement during their meeting Thursday.
Marshall made comment at a March 2021 meeting that the district’s effort to focus on diversity, equity, and inclusiveness were poor framing for students learning about a “very complex issue.” His comments talked of race and added his interpretation of the history of the topic.
Following his comments, Gibson, the district’s director of equity, diversity, and education, raised Marshall’s statements with the district’s administration and school board president. She said Marshall’s comments were based on “explicitly racist ideas.” She further suggested the district remove a portion of Marshall’s public comments from public view and discussed a procedure for handling controversial comments in the future.
Christine Toy-Dragoni, the then-school board president who is no longer on the governing body, issued letter to parents that said Marshall’s comments “contained micro-aggressions as well as explicitly-racist ideas that connected the Black community to several commonly-held, stereotypical beliefs that are harmful.” She apologized for not stopping his comments at the meeting and that she “didn’t act in the best interest of our entire community.”
“Defendants’ statement attacking Marshall apparently re-enforced a culture of hostility to First Amendment rights at Pennsbury,” the lawsuit stated.
The lawsuit also focused on the May 2021 meeting when Solicitor Peter Amuso ended the public comments by Daly, Marshall, and Abrams. The lawyers noted Amuso shouting at the men to end their comments and called his outburst a “performance” that was “unlawful.”
Comments by several board members appearing to support the limiting of the comments were cited in the case.
The lawsuit made the argument that the district’s editing of public comments and termination of comments by Abrams, Daly, Campbell, and Marshall was due to the viewpoints of the men.
“The government may not silence speech because it criticizes government officials or employees, or their favorite ideas or initiatives, even if that speech does so in ways that many people may find unpleasant. Allegations of hurt feelings, real or spurious, do not justify censorship of public speech,” the lawsuit said, noting the famed U.S. Supreme Court decision in New York Times Co. v. Sullivan.
“It is axiomatic that criticism of school officials, school employees, school rules and regulations, school budgets, and school curricula are germane to the business of school boards—regardless of whether school board members want to hear such criticism or believe that it is fair,” the complaint further stated. “The First Amendment prohibits the exclusion of these viewpoints from public speech at school board meetings.”
When issuing a preliminary injunction against the school district last fall, U.S. District Judge Gene E.K. Pratter said the First Amendment “protects offensive speakers.” She also noted testimony made in her courtroom showed members of the public who spoke highly of Pennsbury officials were welcomed, but the board engaged in “viewpoint discrimination” when it stifled the speech of those who were there to criticize officials and decisions they made.
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Tom Sofield has covered news in Bucks County for 12 years for both newspaper and online publications. Tom’s reporting has appeared locally, nationally, and internationally across several mediums. He is proud to report on news in the county where he lives and to have created a reliable publication that the community deserves.
