Adam Shelton from The Goldwater Institute

Episode Transcript

Speaker 1 (00:00):
I have a story for you tonight about a woman
named Nicole. Nicole is a mom. Nicole is a mom
in Indiana. More specifically, although not very specifically, Nicole has
kids and UH, and one of her kids got on
a school bus had some issues. I'm not even sure
what the issues were. The conduct of the bus driver

(00:22):
was in some way a problem for not only Nicole's kid,
but with her other kids on the bus and UH,
and Nicole was upset about it, and she filed a
complaint and then she went to the school and she
had a conversation with the principal and the short answer
for the principal is Amen, he's no my problem, man.

(00:43):
That's a bus thing. This is a school thing, man.
So the principal didn't do anything to help.

Speaker 2 (00:49):
Well.

Speaker 1 (00:49):
Nicole recorded the conversation with the principal, posted it to
social media, along with her grievances about the problems with
the bus driver. Got a cease and to sister or
whatever you want to call it, saying hey, hey, you
can't do that. We have a policy that says you

(01:11):
can't record conversations with school people. And by the way,
you're banned from your kids school. You can't even come
to the school because we don't like what you did.
Take it down and stuff and things, and so Nicole
was not happy, obviously with that result. The school board

(01:31):
has since rescinded that banning from the school, but there
is a lawsuit in progress now. The Goldwater Institute has
taken on the case and representing Nicole, claiming essentially that
her First Amendment rights are being violated. Now, I am

(01:56):
philosophically on board with Nicole. You know, I'm sick, especially
you know, school systems, but public entities in general, those
who are supposed to be serving us. I'm just I'm
tired of them acting as if we are their servants
and dictating to us. But I think this may be

(02:20):
a loser in a court room. Obviously, the statutes will vary,
and I'm not sure in Indiana. Ohio is, for example,
one party state. So I can record a phone call
with Zach and not tell Zack I'm recording him. That's
legal in the state of Ohio as long as one
party in the conversation is aware of the recording of

(02:43):
the call. I don't know if that's how it works
in Indiana. The thing of it is is policy is
not law, and if indeed Indiana requires notification, I don't
know how this stands up in court. However, I am
very interested in the case because I love I love

(03:08):
people fighting back. I love people not taking it up
the nose from their city hall, their city council, their
mayor their school system, whatever, because we need more of that.
This is this is the modern day protest. You know

(03:29):
what I mean. The world changes, technology changes, circumstances change,
and this is people standing up and saying you know,
hell no. So you've got the story, the background a
little bit. At least. Adam Shelton is with the Goldwater Institute.

(03:51):
I believe an attorney, but I'm not sure if Adam's
the attorney representing in the courtroom or not. Let me
see if I can get him on. Adam, are you
with me?

Speaker 2 (04:00):
Yeah? Thanks for having me today. I'm the attorney representing
a Nicole in this case.

Speaker 1 (04:03):
I appreciate you joining me tonight for the power hour.
And I don't know what is right off the bat.
What is the statute in Indiana? Is it a two
party notification state or is it okay for one party
to be aware and to keep it quiet from others?

Speaker 2 (04:17):
A couple things about that. So Indiana is a one
party consent state, so as long as one party consents
the coorting, that's fine. The Indian stream Quarter has actually
made it very clear though, that that only actually applies
and the whole one party consent state issue only applies
to phone conversations, not kind of in person conversation, So
that wouldn't even even even if it was a two
party state, it would not have prevented Nicole from recording

(04:39):
the conversation here, and even kind of if that were
the situation, Nicole has a first center rights to record
this type of conversation or conversation with the government employee
about her child, and the First Amendment kind of trumps
everything else.

Speaker 1 (04:53):
Well, and that's I guess the interesting party. If you
dissect the First Amendment, the the ability the right to
express yourself, does that does your expression contain, you know,
the words the thoughts of other people? Are you expressing yourself?

(05:13):
I guess by relaying what other people said as opposed
to your own beliefs.

Speaker 2 (05:20):
Now, the courts have long held that the first timer
protects more than just kind of spoken written word. It
also protects conduct that itself is inherently expressive or that
can't be sufficiently divorced from the speech creation process, and
this includes recording. Courts across the country have held that
individuals have a right to both audio record and video
record public officials in public during the scope of their

(05:44):
performing the public scope of their public duties. We think
that should also include situations where you're having a meeting
with a school official and a public building, when that
meeting is just between the parents and the school official
is about that parent child and doesn't threaten the privacy
rights of any other students at the school.

Speaker 1 (06:00):
I know a lot there's been a lot of contesting,
especially with the police officers, police stops and so forth,
and I think at least two of those are active
on an appellate level right now, where officers are confiscated
cell phones, refuse to allow recordings and and so forth.
And the counter to that claim is what you're wearing

(06:21):
a body cam. If you, as a servant of the people,
can record me in this traffic stop, why can I
not record you as the people, as the employer that
this this. We're in the age of surveillance now, and
it's the there's a lot of sorting out to do
a great deal sorting out to do. Uh, this lawsuit
that you have right now with the school system. This

(06:45):
is what's what's the end result? What are we searching
for in order to make Nicole happy and to make
her whole and conclude the thing.

Speaker 2 (06:54):
So, the school as a policy that prohibits parents and
all individuals from recording meetings with school officials without the
permission of the building administrator. But you shouldn't need the
permission of government official to exercise constitutional rights. So we're
hoping for here is a change to that policy that
says that parents are permitted to record meetings with school

(07:15):
officials when those meetings are just between parents and the
school officials and don't threaten the privacy rights of other
non governmental employees.

Speaker 1 (07:23):
And what kind of time Lenny looking at? Is there
a court date? Is this still in the preliminary stages?
When might this be resolved in what would be the
repercussive effects I guess on other states? Is this going
to be strictly in Indiana or will this be a
precedent setting for the rest of the country.

Speaker 2 (07:41):
So this case is in this very early stages. We
filed our complaint and where we're just waiting for the
response from the school district. But the holding this case
that for successful will not be limited to Indiana. We
are arguing that the First Amendment necessarily protects the rights
of parents to record meetings with school officials, and that
would be applicable whether you're in Indiana or any state
across the country.

Speaker 1 (08:00):
Has has the school system at this point, I mean,
have they at least divulged their reason for removing the
initial ban on Nicole from going to her kids' school.
Did they issue any sort of statement, apology, reconsideration, or
did they just do it arbitrarily and not say why.

Speaker 2 (08:18):
So they explained after we sent them our demand letter.
We send them a demand that are demanding that the
trustpaths that will be removed, that their communications plan be removed,
and that they changed the policy after that. They removed
the no trust pass order. Now they've said that that
is something that they typically do after a year they
reconsider all no trust pass orders. But the fact of
the matter is that the policy is still in effect

(08:39):
and a letter made clear that if she records again
in the future without permission of the building administrator, the
school will reinstitute the no trust pass order and the
communications plan that are placed.

Speaker 1 (08:47):
On the whole concept of trespass on public property has
always intrigued me as a you know, unless you are
a criminal, unless there is, you know, some adjudicated reason
why you cannot be present in a publicly owned facility.
I don't get how anybody empowered over, you know, running

(09:09):
that facility can ban you from it. That has that
ever come up as far as you know, at least,
has there been a case questioning that, and has the
court ruled in favor of the ridiculousness and given a
valid reason as to why it's acceptable to ban people
from a public building.

Speaker 2 (09:27):
You know? What I can speak to is the fact
that you know, schools are obviously a sensitive place, but
that parent should have a general rights to be where
the children are present, as long as it's not going
to be disruptive to the educational environment of the school district.
And because of the inherent importance of printal rights, there
must be heightened scrutiny when a school decides to ban

(09:47):
a parent from the prop from the from the school,
especially because that prevents the parent from being able to
continually assess the educational environment that the child is in
and have regular interactions with those two and the school
officials who have regular interactions with their children.

Speaker 1 (10:04):
All right, I'm going to keep an eye on this
because I said at the onset I am all in
favor raging against the machine, especially when that rage may
benefit the general public. And just far too often too
many school board meetings that people cannot speak or are
limited in their amount of time when others have not been.

(10:26):
I just watched one yesterday where I can't recall her name,
a young girl fourteen years of age who addressed the
school board, and instead of confronting that fourteen year old girl,
the entire board got up and walked out of the meeting.
The power of the individual is a wonderful thing, and
I love it when people choose to stand up against it.

(10:46):
So I hope we can keep you on speed dial
when this thing gets in front of a judge and
we get a decision. I would love to get all
the grizzly details about how the trial went and how
it turns out.

Speaker 2 (10:57):
Absolutely well, thank you for having me on today.

Speaker 1 (11:00):
I appreciate you. That's Adam Shelton with the Goldwater Institute
on six to ten w UTV. And it's a very
interesting case. And it's it's again, it's one of these
things where I'm tired. There there was a guy who
used to go to the Columbus City schools meetings. What
was his name, something Israel maybe, and he used to

(11:20):
do the weirdest thing. I mean, he he would do
like this this chant thing, all right, and and it
was it was weird. And for someone who comes in
and offers nothing productive at the meeting, I can see honestly.
You know, by ay, maybe you need a two thirds
majority vote to the board or whatever to say, okay,

(11:42):
you must you must be speaking to something having to
do with the business of the school system or the
school board, or or an individual school for that matter.
But to come in and just and go through this
this chanting thing, it's just it's not productive and it's
not an efficient use of the people's time. So I
could see that. But if somebody wants to come in

(12:03):
and complain, grete, grouse, moan, grown whatever about something that
is under your purview as a government official, and that's
what you are when you're elected to that position, I
don't see it being able to shut him down. I
don't see you being able to ban somebody from a
public building unless you know the law has said this

(12:27):
person's dangerous and cannot be here. You know you can't
come in this school because you're a convicted child predator. Okay,
that's fine, that's fine, but you're a troublemaker with a
big mouth. No, there's no criminal element there. And uh,
I absolutely understand this mother. I think she got the

(12:51):
short end of the stick in a couple of different ways.
But I don't buy necessarily the First Amendment argument. I
can say whatever I want as as an American, I
can open my mouth and express any point of view
I would. But if I were to, if I were
to hold up, you know, my cell phone now and

(13:14):
have a recording of something Zack and I were talking
about that I disagreed with and basically put him on
front street as we used to say, I don't think
that's my First Amendment right to out him, even if
it wasn't a public building. I don't know, I don't know.

(13:37):
I'm gonna I'm gonna have to think about that when
I guess