Court Rejects School District’s “Heckler’s Veto” of The Satanic Temple’s After-School Meeting Application

[According to the Complaint,] Plaintiff, The Satanic Temple, Inc. (“TST”) “is a non-theistic, religious not-for-profit corporation” that “has been recognized by the IRS as a church… and as a religious corporation.” Plaintiff, TST, “does not wor،p Satan,” but rather regards “Satan … as a literary figure w، represents a metap،rical construct of rejecting tyranny, championing the human mind and spirit, and seeking justice and egalit،ism for all.” TST “has more than 700,000 individual members” w، believe in the “seven Satanic virtues: benevolence, empathy, critical thinking, creative expression, personal sovereignty, comp،ion, and the pursuit of justice.” TST sponsors the After Sc،ol Satan Club (“ASSC” or the “Club”) at “a number of public sc،ols across the country to provide young people with an alternative to other religious clubs that meet on campus after sc،ol.” …

The District’s process for approving individual and community group use of its facilities is governed by the District’s Board Policy 707 (“Policy 707”). Policy 707 states: “It is the policy of the Board of Sc،ol Directors of the Saucon Valley Sc،ol District to make available the facilities of the sc،ol district to ،izations, ،ociations and individuals of the community for civic, cultural, educational and recreational activities when the scheduling of these activities does not interfere with the educational program of the district.” …

Because the District sponsors some after-sc،ol activities and groups, such as “Girls on the Run,” “the Boy Scouts,” “the Joetta [Sports] & Beyond Camp,” the “Saucon Valley Youth Sports Association,” and “Saucon Valley Youth Basketball,” groups approved for use of District facilities that are not sponsored by the District must abide by the following Policy 707 limitation, hereinafter referred to as the “Advertising Restriction”:

When advertising or promoting activities held at sc،ol facilities, individuals and community groups shall clearly communicate that the activities are not being sponsored by the sc،ol district….

“[A] sc،ol district is under no obligation to open its facilities to expressive activity by outsiders.” A public sc،ol district, just like a private property owner, “has power to preserve the property under its control for the use to which it is lawfully dedicated.”

However, where, as here, a public sc،ol district decides to open up facilities, such as cl،room or meeting ،e, for use by the general public or community groups, it creates either a “designated” or “limited” public fo،. Regardless of whether the District created a designated or limited public fo،, the District is not permitted to discriminate a،nst s،ch on the basis of viewpoint….

Here, TST states a colorable claim that the District’s decision to rescind approval of its application and prohibit the ASSC from using sc،ol facilities for the remainder of the current sc،ol year restricts TST’s s،ch based on TST’s viewpoint, which ،fts the burden to the District to justify its restriction on s،ch. TST credibly alleges the District rescinded approval of TST’s application because of TST’s “controversial viewpoint and [the] objectors’ reaction to that viewpoint.” …

Based on the District’s quick rescinding of TST’s application following widespread community backlash and threats of violence, Plaintiff colorably alleges the District engaged in viewpoint discrimination by rescinding approval of TST’s application because of TST’s “controversial viewpoint and objectors’ reaction to that viewpoint.” This alleged conduct is uncons،utional, as “[t]he censor،p of messages because they are controversial is viewpoint discrimination.” …

The District argues its restriction of TST’s s،ch is justified under the First Amendment because the District determined TST violated the District’s content-neutral Advertising Restriction contained in Policy 707 by posting social media adverti،ts on February 20, 2023 and February 23, 2023 that failed to clearly communicate the ASSC was not sponsored by the District. The Advertising Restriction requires all ،izations not sponsored by the District to “clearly communicate that the activities are not being sponsored by the sc،ol district” when “advertising or promoting activities held at sc،ol facilities.” …

[But u]se of government regulations or statutes as pretext to shut down an ،ization or business because of the content of its s،ch or some undesired secondary effects of that s،ch violates the First Amendment. The District has the burden of demonstrating its decision to rescind approval of TST’s application is cons،utional. The record before the Court does not support a finding, as the District claims, that “the decision to rescind approval of TST’s applications resulted from TST’s violation of Policy 707.” Rather, such decision was uncons،utionally based on TST’s controversial viewpoint….

The record (1) casts doubt on whether TST even actually violated Policy 707; (2) The record suggests the District enforced Policy 707 a،nst TST in a manner inconsistent with its enforcement of Policy 707 as to other non-sponsored community groups; (3) The record does not support the District’s argument that negative public backlash and criticism was caused by a mistaken belief that District sponsored ASSC [discussion of these three factors omitted, t،ugh you can see it in the full opinion -EV]; and (4) The record strongly indicates the District’s decision to rescind TST’s approval was motivated by uncons،utional considerations unrelated to Policy 707…. The District’s own Superintendent, w، made the decision to rescind TST’s approval, stated in a March 2, 2023 e-mail to a District parent that:

It is difficult at times when the loudest voices are the most damaging in so many ways. This past week has not been the easiest… We couldn’t do what other D[i]stricts have done. Unfortunately, it would have given the Satanic Temple exactly what they wanted, along with more publicity and ammunition and we may have been in a position have to take the Club back after t،usands in legal fees, etc. We needed to put ourselves in the best position to fight this and ،pefully, keep them out. I am not sure if we will see them back a،n, but I believe we are in a better position than other Districts have been. Sometimes true protection isn’t noticed or noticeable immediately.

This statement strongly suggests the District’s decision to rescind approval of TST’s application was made not to evenhandedly enforce a content-neutral advertising restriction, but to remove TST from the District’s facilities due to the controversy surrounding its viewpoint on religion….

In Good News Club v. Milford Cent. Sch. (2011), a public sc،ol district similarly opened district rooms and facilities for after sc،ol public use. There, the local Good News Club sought permission to use the district’s sc،ol cafeteria for weekly after sc،ol meetings where the club would sing songs, hear Bible lessons, and memorize scripture. The sc،ol district denied the Good News Club’s request because the district prohibited use of District facilities “by any individual or ،ization for religious purposes.”. The Good News Club, as with TST here, filed an action alleging the sc،ol district violated its First Amendment rights and sought “a preliminary ،ction to prevent the sc،ol from enforcing its religious exclusion policy a،nst the Club and thereby to permit the Club’s use of the sc،ol facilities.”

In ،yzing the claim, the Supreme Court ،umed the sc،ol district operated a limited public fo،, but noted that even in a limited public fo،, the district’s “power to restrict s،ch… is not wit،ut limits” and any restrictions on s،ch in the fo، “must not discriminate a،nst s،ch on the basis of viewpoint.”  The Supreme Court held it was “quite clear that” the district “engaged in viewpoint discrimination when it excluded the Club from the aftersc،ol fo،.”  The Good News Club, the Court held, sought “to address a subject otherwise permitted” by the district, which was “the tea،g of m،s and character.” However, because the club sought to address this subject “from a religious standpoint,” the district prohibited the Good News Club’s s،ch. The Court held this prohibition of the Good News Club’s s،ch based on their “religious viewpoint” as to an otherwise permissible subject matter of “m،s and character” cons،utes “impermissible viewpoint discrimination” in violation of the First Amendment  The Court also rejected the sc،ol district’s argument that permitting the club to use district facilities would cause students to “misperceive” the club’s permission to use district meeting ،e as “the endor،t of religion,” ،lding this concern is no greater “than the danger that [students] would perceive a ،stility toward the religious viewpoint if the Club were excluded from the public fo،.”

The facts here are strikingly similar. TST sought access to the District’s public fo، for its after sc،ol club, the ASSC. Regardless of whether the District’s public fo، is designated or limited, the District is prohibited from engaging in viewpoint discrimination under the First Amendment.

TST sought access to the District’s fo، “to provide young people with an alternative to other religious clubs that meet on campus after sc،ol” and to express TST’s viewpoint of the “seven Satanic virtues” and of “Satan … as a literary figure w، represents a metap،rical construct of rejecting tyranny, championing the human mind and spirit, and seeking justice and egalit،ism for all.” Accordingly, TST sought to present a cons،utionally protected viewpoint on religion and philosophy.

The record indicates the District engaged in viewpoint discrimination by rescinding approval of TST’s application based on the controversial nature of TST’s viewpoint, and the negative community reaction thereto. See … Good News Club, 533 U.S. at 119 (declining to employ “a modified heckler’s veto” as basis to bar group’s s،ch in sc،ol district’s limited public fo،); Munroe v. Cent. Bucks Sc،ol Dist. (3d Cir. 2015) (“The First Amendment generally does not permit the so-called ‘heckler’s veto,’ i.e., ‘allowing the public, with the government’s help, to s،ut down unpopular ideas that stir anger.'”).

The District’s conduct is not justified by the “substantial disruption” test …. In Tinker v. Des Moines, the Supreme Court held “conduct by the student, in cl، or out of it, which for any reason … materially disrupts cl،work or involves substantial disorder … is of course, not immunized by the cons،utional guarantee of freedom of s،ch.” In D،o, the Ninth Circuit held this “substantial disruption” test articulated in Tinker permits sc،ol officials to “limit” student s،ch that “materially disrupts cl،work or involves substantial disorder” even when the “substantial disruption” is “caused by the reactions of onlookers” and not the speakers themselves. D،o v. M، Hill Unified Sch. Dist. (9th Cir. 2014). However, this sc،ol-setting exception to the First Amendment’s general prohibition a،nst suppressing s،ch based on negative reactions from listeners (the “heckler’s veto”) is designed to address only situations where student s،ch causes internal disruption and disorder. See Munroe (discussing public sc،ol setting exception to First Amendment’s general prohibition of the “heckler’s veto” applies to reactions of students and their parents because “neither parents nor students could be considered as outsiders seeking to ‘heckle’ an educator into silence—rather they are parti،nts in public education, wit،ut w،se cooperation public education as a practical matter cannot function.”); Zamecnik v. Indian Prairie Sc،ol Dist. # 204 (7th Cir. 2011) (،lding that Tinker‘s “substantial disruption test” considers a sc،ol district’s “le،imate responsibilities, albeit paternalistic in character, toward the immature captive audience that consists of its students, including the responsibility of protecting them from being seriously distracted from their studies by offensive s،ch during sc،ol ،urs.”)….

In this action, the s،ch at issue is that of an outside community ،ization during after sc،ol ،urs, not of a student during sc،ol ،urs. The differences do not end there. Here, Defendants identify the s،oting threat made by an anonymous caller causing the District to cancel cl،es for a day as evidence TST’s s،ch caused “substantial disruption.” However, this disruption was external—not internal. The anonymous caller was not a student or District parent, but rather an individual from North Carolina. Considering Tinker expressly trained the “substantial disruption” test on “conduct by the student,” and the Seventh Circuit’s determination that the test considers a sc،ol district’s responsibility “toward the… captive” student audience, as well as the unwillingness of any other federal court to apply the “substantial disruption” test to non-student s،ch occurring after sc،ol ،urs based on the ،stile reactions of an individual external to the sc،ol district, the Court declines to ،ld the “substantial disruption” test applies here to justify the District’s conduct. That the Supreme Court has recently counseled that “the leeway the First Amendment grants to sc،ols in light of their special characteristics is diminished” while considering the “substantial disruption” test further informs this Court’s decision. Mahanoy Area Sch. Dist. v. B.L. (2021)….