Trump Elephant as Free Speech –

Trump Elephant as Free Speech –

From the opinion of Judge Roy B. Dalton Jr. in Maxwell v. School Dist. from Volusia County, narrated October 23, but just published on Westlaw; seems to me to be quite correct:

Plaintiff Tyler Maxwell … is … an 18-year-old senior at Spruce Creek High School … in Port Orange, Florida. To park in the parking lot next to the school, Tyler paid $ 55 for a school parking sticker. On September 14, 2020, he drove to school in his pickup truck, but this time with a new passenger on the loading area – a red, white and blue elephant statue with the words “TRUMP” on the side.

The school forbade this, arguing:

The 805 School Board “adequately regulates political activities relating to the time, place, and type of use on the School Board’s property” so that the ban on Tyler’s elephants does not violate Tyler’s constitutional rights. Policy 805 prohibits “political posters, signs, banners, or any other writing promoting a political problem, cause, position, or candidate” that is “permanently affixed in or on the property of the school board”. The school concluded that Tyler’s “political activity … took place on school premises during school hours and appeared to create the appearance of public approval of partisan positions or a specific candidate,” in violation of Policy 805.

No, said the court:

The school’s response claims that the elephant is a school-sponsored term. He gave the “imprimatur of public support” and cited two cases of expression sponsored by the school. However, it would not be reasonable for the public to believe that an elephant advocating a presidential candidate clearly placed in a single student’s car and parked in the school parking lot, which is mostly used by students, represents the school’s viewpoint. {This is no more likely than attributing to the school a bumper sticker message from a student about the local area or an affinity for Gator soccer.} {The elephant display is also not associated with any curriculum activity.

{The school posted the reasons for revoking a student’s parking sticker on their website. The reasons do not involve politics. Failure to comply with school policy is a reason for revocation, but the policy cited by the defendants prohibits “permanent” political signage. Tyler’s elephant is not permanently stationed on the school premises.}

The mobile elephant is purely an expression of the student and the school must tolerate it, unless the expression “would materially and materially affect the requirements of adequate discipline in the operation of the school”. In order to “justify the prohibition of a particular phrase” the school must be able to demonstrate that its action was not caused by the mere desire to avoid the inconvenience and inconvenience that always comes with an unpopular viewpoint. “Tyler will accept the truth of the verified allegations at this point and will likely be able to successfully demonstrate that the school did not have a reasonable belief that his elephant was causing a material disruption of school activities.

Tyler claims the elephant didn’t bother the students – it stayed in Tyler’s truck outside of school. And the school allows other forms of political speech in this place, including bumper stickers. While the Court recognizes the difficult task of the school in ensuring a safe and orderly place to study for students, “an undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tyler has shown a chance of success for his First Amendment claim …