In Page v. Lexington County School District One, 531 F.3d 275, 277 (4th Cir. 2008), the Fourth Circuit reached the same result in a case challenging a South Carolina school district's use of its website, email, and "other forms of communication" to oppose a bill pending before the state legislature that would grant tax credits to families who homeschooled their children or enrolled them in private school.
The school district, which was a "body politic and corporate" under South Carolina law, took the position that the proposed law would undermine the public education system. Id.
A citizen who supported the proposed law demanded equal access to the school district's "'informational distribution system'" to advocate in favor of the measure. Id.
When the school district refused his request, he filed suit, alleging that the school district was engaging in unconstitutional viewpoint discrimination in violation of the First Amendment.
The district court granted summary judgment in favor of the school district.
The Fourth Circuit affirmed. Citing Johanns, it opined that it is "well-understood" that "even though government is supported by the taxes of all, its policies are not supported by all. It follows therefore that the government may advocate in support of its policies with speech that is not supported by all." Id. at 280.
The court emphasized that the government is "'accountable to the electorate'" for its speech. Id. at 281 (quoting Bd. of Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217, 235, 120 S. Ct. 1346, 146 L. Ed. 2d 193 (2000)).
The plaintiff citizen also argued that "as a general matter . . . the government speech doctrine should . . . never apply when the government attempts to influence legislation." Id. at 287.
He maintained that advocacy of that type is unique because it is not "checked by the 'ballot box.'" Id.
The Fourth Circuit disagreed.
The Court noted that the school board members were elected and were subject to removal in the next election "if the voters disagreed with the manner in which they have exercised their discretion." Id.