from Johnson v. Knox County Bd. Ed’s.decided by Judge J. Ronnier Greer (Tennessee Department of Education) on March 31, but just recently posted on Westlaw; seems correct to me:
The plaintiff alleges the following facts: On the afternoon of March 31, 2022, Rebekiah Johnson and her young son, Shaque Johnson, went to the school where Brandon Pratt was the principal. New Hopewell Elementary School, “to draw attention to racism within the school and administration” The Johnson family experienced this through Principal Brandon Platt. Shaq Johnson stood across the street from a parking lot exit/entrance holding a sign that read “Mr. Platt is Wrong. Please read eagleswithcolor.com” on one side and “Platt” on the other The truth about Principal Special, eagleswithcolor.com”. other side. Rebekiah Johnson walks down the street on the side of the school with a sign that reads “Mr. Platt is racist. eagleswithcolor.com” on one side and “Community Needs” on the other Get it! Rebecca Johnson is on the street with her son, which is public property. Rebecca Johnson holds her sign while walking between the two exits/entrances as parents come to pick up their children.
self-regulatory organization [School Resource Officer] Find Rebecca Johnson and tell her she needs to move across the street. Rebecca Johnson told him, “She is on public property and has the right to stand where she is.” The officer responded, “Yes… as long as you don’t go behind the fence.” At that time, Rebecca Johnson Johnson stood nearly thirty feet away from the fence. The SRO then walked away. Rebecca Johnson continued walking down the street holding a sign, speaking only to people who asked her questions. She did not block traffic or cause chaos.
Meanwhile, Shaquille Johnson stood quietly across the street from the school’s other exit so parents could see his sign as they exited the school parking lot. As he stood there, the SRO and another older white gentleman, later identified as Fred Wade, a teaching assistant at New Hopewell Elementary School, walked down the school driveway and stood near the exit. Wade started talking to Shaquille Johnson across the street. He looked angry and the SRO had a gun, so Shake Johnson began recording the interaction on his cell phone. Wade yelled at him from across the street, saying Shaquille Johnson “can’t record.” Shaquille Johnson told Wade he could record, and Wade threatened to take Shaquille Johnson’s phone. After most of the cars left the parking lot, Wade and the SRO walked away. “After the school driveway was almost cleared, Rebecca and Shake Johnson decided to pack up the sign and leave.”
On April 7, 2022, Rebecca Johnson received a letter from Investigator Martin Timms. The letter reads: “It has come to the attention of Knox County School Safety that your recent protest at New Hopewell Elementary School was inappropriate and disruptive. As a result of this behavior, you will receive a civil letter Code letter. The letter cites Knox County School Board Policy B-230 and states: “Further violations of Knox County School Board Policy B-230 may result in your being barred from any property owned or controlled by Knox County Schools. Any property.” Finally, the letter states that Rebecca Johnson needs to educate herself on the Tennessee Code Ann. §§ 39-14-405, 39-14-406 and 39-17-305. Hopewell Elementary School.
The court allowed most of the plaintiffs’ First Amendment case to proceed:
The defendants argued that the plaintiff’s protest — specifically Rebecca Johnson’s sign calling Mr. Platt a “racist” — was not protected by the First Amendment because it was defamatory and harmful to the educational environment. Destructive. In support of this argument, the defendants cited case law showing that schools can regulate vulgar or disobedient speech on campus. Court agrees Rebecca Johnson’s sign was capable of causing chaos on campus. However, the defendants did not cite any authority indicating that a school could restrict the speech of private citizens like the Johnsons who protested on public property within sight of the school. At this stage of the litigation, the plaintiffs have fully asserted that their protest is protected by the First Amendment.
{Shaquick Johnson’s videotaping may also involve First Amendment concerns. look Knight v. montgomery county (MD Tenn. 2020) (observing that while the issue is far from settled, “across the country, courts are increasingly leaning toward holding that video recordings are indeed speech for First Amendment purposes,” citing several example).
[A]At this stage of the lawsuit, Shaquille Johnson has fully alleged that Wade’s conduct violated his First Amendment rights. According to the second amended indictment, Wade yelled at Shaquille Johnson, told him not to record and threatened to take his phone. And, even if Wade went above and beyond the scope of his duties as a teaching assistant, it turns out that he was acting in his capacity as a school employee when he interrupted Shaquille Johnson’s protest….
[T]The civility letter Timms sent to Rebecca Johnson essentially prohibited her from protesting Principal Pratt near the school. Rebecca Johnson therefore fully accuses Timms of depriving her of her right to free speech….
The plaintiffs also allege that the defendants retaliated against them for protesting. To state a First Amendment retaliation claim, a plaintiff must prove: “(1) that he engaged in protected conduct; (2) that the defendant took adverse action against him; and (3) that there is a causal relationship between the two.” The action is “capable Prevent ordinary determined people from exercising their constitutional rights.
Wade … argued that his interactions with Shaquille Johnson did not constitute adverse conduct because the Johnsons “stand their ground and continue to protest.” Of course, the fact that Shaq Johnson didn’t stop the protest suggests his speech wasn’t influenced by Wade. But the bad behavior test is objective. Therefore, “the question is whether an ordinary determined person would have been intimidated, not whether the plaintiff himself was actually intimidated.” Viewing the Second Amended Complaint in the Light Most Favorable to Shaquille Johnson, Wade’s Threat It may make an ordinary person’s speech become cold…
Timms also argued that the civility letter he sent to Rebecca Johnson was not adverse conduct because it did not actually threaten criminal prosecution. However, the letter threatens Rebecca Johnson with banning her from all schools in Knox County if she engages in “inappropriate and disruptive” protests again. This letter could dissuade an otherwise determined person from participating in another protest, especially if that person, like Rebecca Johnson, has children who attend school in Knox County. In fact, Rebecca Johnson insists that she did not protest against Chancellor Pratt again because of the letter. Therefore, Rebecca Johnson claims First Amendment retaliation against Timms….
The court also declined to dismiss the case on qualified immunity grounds:
It is well known that citizens’ right to speak out publicly on issues of public concern (such as a school principal’s alleged racially motivated conduct) is broadly protected by the First Amendment. The First Amendment strongly protects the right of citizens to criticize public officials, even if such criticism does not attract public attention…. “The freedom to criticize public officials and expose their misconduct is core to First Amendment values, even if that action is motivated by personal anger or resentment.” … In the later stages of litigation, defendants can prevail on the basis of the qualified immunity defense. At this stage, however, the plaintiffs have met the low threshold of plausibly claiming that they have a clearly defined right to protest without interference from the defendants. Therefore, dismissal on qualified immunity grounds is premature…
