CORRECTION:
In the Jan. 16 edition of the News-Dispatch, an incorrect story was printed concerning the controversy over the logo of the Wimberley ISD Texans being altered with the addition of a rainbow flag. A lapse in our story flow procedures turned around and bit us, and we have taken steps to ensure that it does not happen again. The story that was supposed to run in that edition has been available online since Jan. 15 and will continue to be. That story is also printed at the top of this page.
The ACLU is now stepping in to protect parents’ freedom of speech after the Wimberley Independent School District (WISD) threatened legal action against parents who posted a Texan logo with a pride flag in the background.
A six-page letter from the ACLU details how WISD’s actions violated parents' First Amendment rights, through ‘the chilling effect’, the term used by the U.S. Supreme Court regarding the concept of deterring free speech. In the letter, the ACLU requested that the district retract its email threatening legal action and drop all further actions against parents by Jan. 17.
“Wimberley ISD is not only violating the First Amendment but also wasting potentially thousands of taxpayer dollars at the detriment of Wimberley students and parents,” according to the ACLU’s letter.
The first time the ACLU stepped in was to warn WISD against taking disciplinary action against school board member Lori Olson for posting a selfie of herself wearing a shirt with the rainbow Texan logo.
Wimberley’s online community was split between people who supported Olson’s choice to wear the rainbow Texan logo and people upset that the district appeared to be embracing the LGBTQ community.
Around the same time Olson posted that selfie, several parents embraced the pride festivities by also posting an altered Texan logo with a pride flag in the backdrop.
In response, Superintendent Dwain York sent a letter to students and parents that altering the district’s logo is frowned upon.
“... any Wimberley ISD administrator, in a position of authority, will always protect the official marks/logo of Wimberley ISD and will not approve the brand’s use in any altered format,” York wrote in the letter.
However, altering the district’s logo is common in the Wimberley community. The Texan Car Wash, which is located across the street from Wimberley High School, uses the logo on its business sign. Ace Hardware sells t-shirts with variations of the logo, including one with crosses behind it.
Soon after the online backlash over the altered logo, the district rushed to obtain copyrights of the logo. Compared to other Hays County school district,
While it is not yet been reported if other Hays County school districts have trademarked their logos, the Dripping springs ISD trademarked its paw logo in 2011.
The ACLU argued the district’s actions discriminate against certain viewpoints like the LGBTQ community.
“This suggests that the school district is selectively enforcing its intellectual property rights in opposition to the viewpoints expressed by Wimberley parents, which is bolstered by the fact that Wimberley ISD did not obtain the copyright for the Texans logo until after local news coverage of the controversy.”
After filing for copyrights, the district sent an email warning parents to remove any postings of the altered logo by Jan. 6 or legal action would be taken against those parents.
“Wimberley ISD is aware that you are using and displaying an altered Texan logo,” York wrote in an email. “We request that you immediately take down the altered Texan logo on social media or in print. Failure to do so by Jan. 6, will result in a cease and desist letter from the WISD attorney.”
In response, most parents removed the logo from their social media page in response.
On Jan. 3, the ACLU sent a six-page letter asking York to retract his email sent to parents in order to avoid “significant legal liability at the detriment of Wimberley taxpayers,” the letter wrote.
Total legal fees for obtaining the copyright and hiring a lawyer have not been disclosed. The News-Dispatch has made a public records request for the cost estimate.
The ACLU’s argument
The ACLU argues that posting a logo altered for political statements is protected under copyright laws. In the letter, the ACLU reminded the district that the First Amendment protects against government bodies which threaten forms of political expression.
“Modifying a logo, even if copyrighted, for the purpose of political expression is protected by the First Amendment and specifically allowed under the fair use doctrine of federal copyright law,” wrote the letter from the ACLU. “By altering the logo and adding a rainbow flag, they changed its meaning for the purpose of making a political statement, which triggers fair use protections. The district’s intellectual property arguments also fail because no one used the Wimberley Pride image for commercial purposes.
The ACLU cited case law and the constitution to argue that the district has caused a chilling effect.
“The school district is impermissibly retaliating against parents based on the content of their speech and chilling free expression with threats of legal action,” ACLU letter said.
The News-Dispatch spoke with Texas State University media law professor Gilbert Martinez to better understand what “chilling free expression means.”
“When a government entity makes a threat and try to silence particular expressions, usually something that they don't agree with. Certainly threatening to send a cease-and-desist letter from a lawyer is an example,” Martinez said.
Regardless of political belief, everyone should have the right to express that belief because it improves society and school districts should embrace values in our society, high among those values is the right to express yourself, Martinez said.
“If you punish only some expressions but not others then there's a favoritism going on. That's where sort of a discrimination can come into play. Parents were expressing something specific about what they want the school district atmosphere to be and it appears that the administration does not agree with it and has done what any other authority has done and tried to silence those expressions. Whether you are doing it with copyright law or whether you're doing it with the threatening letters from lawyers or whatever, it is still a chilling effect and it's not good for the free society,” Martinez said.
WISD’s response:
The News-Dispatch asked York if he will retract his emails as the ACLU has requested. So far, the district has not retracted its emails.
WISD Superintendent Dwain York has not recognized nor apologized that the district’s actions have threatened taxpayers’ First Amendment rights. In an email response, York said he strives to bring the community together.
In an email response York wrote:
“As we begin this new year, Wimberley ISD wants to bring this community together, and if any actions that we have taken contributed to any disharmony, all of us at WISD take to heart our leadership role in bringing about unity. We ask all of you to come together to work with us to make this a priority. Our goal is to be fair and consistent with each and every student, teacher, employee, parent and community member. We know that together, we can continue to be the harmonious, inclusive and welcoming school district that attracts the best teachers and highest achieving students in the state. My doors are always open, and I look forward to face-to-face conversations with anyone who has concerns, ideas or solutions for making WISD better for every student.”
