from the two-wrongs,-no-rights dept

There are no winners here. There are only varying levels of losses. The government sustains the most. As it should. When there needs to be an adult in the room, the government bears that responsibility, no matter how irritating the proverbial child might be.

That means the most childish person will learn nothing from this experience. But we expect our fellow Americans to be irrational weirdos with absolutely abhorrent views on pretty much every social issue. What we should expect — much less become accustomed to — is the government bringing its weight to bear on people who are more stupid than dangerous.

But the government failed here. And, because of that, a person filled with irrational hatred scores an empty net goal. I’ll try to summarize where I can, but there is A LOT going on here.

Angela Reading, a resident of North Hanover, New Jersey and member of the local school board, walked into her daughter’s school and immediately got offended by all the inclusiveness she witnessed. From the Third Circuit Appeals Court decision [PDF]:

The controversy that gave rise to this case unfolded at the Upper Elementary School (UES or School) in the North Hanover Township School District. As part of its 2022 “Week of Respect,” the School invited students to design posters “demonstrat[ing] that UES [is] a safe place where everyone [is] accepted.” Some students offered “messages of general acceptance,” while others supported more specific causes.

One such poster, anchored in the center by the acronyms “LGBTQ” and “UES,” featured descriptions of various sexual identities and their corresponding flags. The poster included a “bi” flag, a “genderfluid” flag, and a “polysexual” flag, among others. It announced that “different is cool” and instructed students that “you are who you are.”

Angela Reading first saw the poster when she attended the School’s “Math Night.” After her seven-year-old daughter asked what the word “polysexual” meant, she was “livid.”

Now, I assume that “livid,” in this context, means unable or unwilling to open a dictionary or perform a perfunctory googling. The definition could have been delivered without offending anyone’s (normal) sensibilities. It’s definitely not graphic, even if it’s a bit more complex of a concept than one would expect a seven-year-old to immediately absorb. Rather than simply end this conversation, Reading logged on to Facebook, which was the style at the time.

She took her concerns to social media. In a lengthy post to the “NJ Fresh Faced Schools” Facebook page, Reading wondered why an elementary school would permit its students to “research topics of sexuality,” and worried that adults were “talking about their sexual life” with her children. She called the poster “perverse” and argued that it “should be illegal to expose my kids to sexual content.”

Narrator: the poster contained no sexual content.

Although “[k]ids should respect differences,” Reading explained, they “should not be forced to learn about and accept concepts of sexuality in elementary school.” Reading concluded the post by noting that her comments were “made in [her] capacity as a private citizen and not in [her] capacity as a [school] board member.”

That non-binding statement means nothing, much like most legalistic-sounding statements copy-pasted all over the internet. It was made in both capacities because [dun dun DUNNN] she was also a school board member.

All of this is stupid and wrong and wouldn’t be worth a Techdirt post if it wasn’t for the government’s response, which included a bunch of government employees acting as concerned citizens BUT[!] while using their powers to retaliate against statements they didn’t agree with.

The main problem here is that Reading’s daughter went to school with a bunch of Army brats. (More accurately, they were kids of “flaps,” a term referring to Air Force members I was not familiar with until I spent about a decade living just outside of Ellsworth Air Force Base.)

Back to the story. Weird shit started happening. A bunch of military officers whose kids went to school with Reading’s kid zeroed in on her posts and started sharing them with each other. All well and good. Then they started doing things like this, apparently solely because they had the ability to do so.

The controversy grew when [Major Chris] Schilling elevated his concerns to the leadership at Joint Base McGuire-Dix-Lakehurst. Now writing from his military email account, Schilling cautioned Major Nathaniel Lesher that Reading’s post could “give[] a road map to anyone looking to make a statement, political, ideological, or even violent.” In response, Major Lesher promised to forward the issue to Robert Duff, the Chief of Police for Hanover Township. After Reading’s post gained modest traction online, Schilling once again contacted Lesher, who vowed to “push this again” to Duff.

Instead of de-escalating the matter to the Hanover Township Police, the situation intensified when more military personnel got involved. Air Force Anti-terrorism Program Manager Joseph Vazquez wrote that Reading’s post “really gets under my skin for sure.” He assured Major Schilling that he was “sending this to our partners with NJ Office of Homeland Security and Preparedness as well as the NJ State Police Regional Operations Intelligence Center,” which “keep an eye on far right/hate groups.” And Lieutenant Colonel Megan Hall advised two local school superintendents, including Defendant Helen Payne, that Reading’s posts “have created a concern for the safety of our military children and families.” She worried that they “could become targets from extremist personnel/groups.”

Yes, Reading’s post deserved criticism. And yes, people should be asking questions about her position on the school board. But “extremist?” This is just suburban Karen shit being dumped onto social media because at least the immediate members of the poster’s family will feel compelled to add a supportive emoji or two. Yes, it was meant to stir the loins of people who barely understand the impulses of their own loins, but it was hardly a matter of national security.

And YET, it became a matter of national security, however briefly. The chief of police inserted himself into the online discussion and convinced the owner of the Facebook page to remove Reading’s comments. He did so by insinuating the post and the page’s owner were “under investigation” by the Department of Homeland Security. Chief Duff also (unbelievably) claimed he had to scramble officers to Hanover schools because of the “threat” posed by this stupid-as-fuck post that outed Reading as an irrational bigot.

Surely this can’t get any stupider, one might think. It does.

The controversy didn’t end there. One comment on Reading’s post revealed the “location” of upcoming school board meetings, which were held at “times . . . publicly listed on the school website.” So even though Reading’s post had been taken down, Major Schilling feared that outsiders might still endanger the community. Worried for the “military parents [who] attend these meetings,” Schilling sought even more support from base leadership. So Anti-terrorism Program Manager Vazquez forwarded Schilling’s concerns to the New Jersey Office of Homeland Security and Preparedness, who in turn notified the Burlington County Prosecutors Office Counter-Terrorism Coordinator. Meanwhile, Chief Duff offered to “continue to monitor social media and take appropriate action if needed.”

Jesus Homosexual Christ. I am also concerned about domestic terrorism in the form of white guys with too many bad ideas and too much free time, but this is not that. This is something else: a person profoundly uncomfortable with the idea of acceptance and access to a Facebook account. Those people are a million in a million. Let it go.

On top of the constant hassling of Homeland Security outposts, various government employees and officials exchanged text messages criticizing Reading (which is actually OK in some cases) and trying to determine which new level of government pain they could inflict on her.

Reading sued, as she certainly should have. And, after a few rounds in the lower court, this has ended up in the Third Circuit’s lap. The Appeals Court says two things. The first is this, which doesn’t seem exactly right: There’s no need for an injunction because the government officials and employees that went after her for months have since moved on to other things.

Even if Defendants engaged in a conspiracy to deprive Reading of her First Amendment right to speak freely during the final weeks of 2022, any threat “had considerably subsided” by the time she sued in March 2023.

Given this small gap in time, the “considerable subsiding” may be more closely related to her lawsuit (or previous threats to sue), rather than the defendants’ ongoing disinterest in fucking with her further.

The only support for the appeals court’s assertion appears to be statements made by Reading’s government-powered tormenters.

[H]ere the law enforcement Defendants confirmed that they are not presently surveilling Reading and have no plans to do so. The record supports them on that score. While Reading continues to author blog posts about the appropriateness of “LGBTQ+ issues in public schools,” Defendants have done nothing more to silence or retaliate against her.

Maybe. Maybe not. I guess everyone will just have to wait and see.

However, this conglomerate of officials who thought needlessly escalating a situation rather than simply ignoring it (or offering their own counter-speech) is still on the hook for damages. Maybe. She can’t keep suing in hopes of obtaining anything in the form of future relief. But she still has a (slim) shot at securing recompense for past harassment.

Reading’s allegations are serious and raise important questions under the Free Speech Clause of the First Amendment. Reading expressed concern about whether her seven-year-old daughter was being exposed to sexual topics that have no place in an elementary school. Regardless of whether one agrees with Reading’s concern, the record suggests that Defendants’ response to her blog post was, to put it mildly, disproportionate. Although that past conduct may very well result in remedies for damages or declaratory relief, this narrow appeal concerns only Reading’s standing to seek a preliminary injunction. And because Reading has not shown a likelihood of future injury, she lacks standing to seek that form of relief.

Look, I don’t like Reading’s opinions. But the best response is either a firm rebuttal or a heavy sigh in recognition of social media’s ability to amplify even the most ignorant of opinions. What you definitely shouldn’t do is leverage your military power and connections in an attempt to treat someone who is merely stupid as a literal threat to public safety. Everyone involved should have known better. But in the absence of an injunction, it’s difficult to believe this stupidity won’t repeat itself once the damages part of the litigation has concluded.

Filed Under: 1st amendment, 3rd circuit, censorship, free speech, hanover, new jersey, retaliation