Ison v. Madison Local School Board

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Billy Ison, et al.,

Plaintiffs, Case No. 1:19cv155

v. Judge Michael R. Barrett

Madison Local School Board,

Defendant.

OPINION & ORDER

This matter is before the Court upon Plaintiffs’ Motion for Summary Judgment

(Doc. 29); and Defendant Madison Local School Board’s Motion for Summary Judgment

(Doc. 33). These motions are fully briefed. (Docs. 34, 35, 37, 38). In addition, the

Court held oral arguments on the motions on August 28, 2020.

I. BACKGROUND

At oral argument, the parties agreed that there is no factual dispute. Accordingly,

as background, the Court relies upon the factual background set forth in the Court’s

previous Opinion and Order (Doc. 23) as well as the video recording of Billy Ison

speaking during the May 22, 2018 Board meeting (Doc. 29, Ex. 6).

Central to this case is Madison School District Rule 0.169.1, “Public Participation

Policy” (the “Policy”), which applies to Board of Education meetings:

The Board of Education recognizes the value to school governance of

public comment on educational issues and the importance of allowing

members of the public to express themselves on school matters of

community interest.

The Board is also committed to conducting Its meetings in a productive

and efficient manner that assures that the regular agenda of the Board is

completed in a reasonable period of time, honors the voluntary nature of

the Board's time and using that time efficiently, and allows for a fair and

adequate opportunity for input to be considered. Consequently, public

participation at Board meetings will be governed by the following

principles:

A. Any person or group wishing to place an item on the agenda shall

register their intent with the Superintendent no later than seven (7) days

prior to the meeting and include:

1. name and address of the participant;

2. group affiliation, if and when appropriate;

3. topic to be addressed.

Such requests shall be subject to the approval of the Superintendent and

the Board President.

B. In order to permit the fair and orderly expression of such comment, the

Board shall provide a period for public participation at every regular

meeting of the Board and publish rules to govern such participation in

Board meetings.

The presiding officer of each Board meeting at which public participation is

permitted shall administer the rules of the Board for its conduct.

The presiding officer shall be guided by the following rules:

. . .

B. Anyone having a legitimate interest in the actions of the Board may

participate during the public portion of a meeting.

C. Attendees must register their Intention to participate in the public

portion of the meeting at least two (2) business days prior to the meeting

upon their arrival at the meeting by completing the public participation

form. An attendee who desires to participate in the public portion of the

meeting must complete the public participation form in person and provide

proof of residence in Madison Township, Butler County, Ohio.

. . .

E. Each statement made by a participant shall be limited to three (3)

minutes duration.

. . .

G. All statements shall be directed to the presiding officer; no person may

address or question Board members individually.

. . .

I. The presiding officer may:

1. prohibit public comments that are frivolous, repetitive, and/or

harassing

2. interrupt, warn, or terminate a participant’s statement when the

statement is too lengthy, personally directed, abusive, off-topic,

antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that person does

not observe reasonable decorum;

4. request the assistance of law enforcement officers in the removal of

a disorderly person when that person's conduct interferes with the

orderly progress of the meeting;

5. call for a recess or an adjournment to another time when the lack of

public decorum so interferes with the orderly conduct of the meeting

as to warrant such action;

6. waive these rules.

J. The portion of the meeting during which the participation of the public is

invited shall be limited to thirty (30) minutes.

(Doc. 13-4, PAGEID# 159-160).

According to their Motion for Summary Judgment, Plaintiffs take issue with the

Policy in three respects: (1) it allows the presiding officer to terminate speech which is

“personally directed,” “antagonistic” or “abusive;” (2) it allows the presiding officer to

request that individuals who do not “observe reasonable decorum” leave the meeting;

and (3) it bans any speaker who does not reside in the District. (Doc. 29, PAGEID#

334). Plaintiffs claim the Policy violates the First Amendment right to speech. At oral

argument, Plaintiffs characterized their challenge to the Policy as being both an as-

applied and facial challenge.1

1Defendant responded that Plaintiffs’ challenge was only being brought as a facial

challenge. The Court has previously struggled with characterizing Plaintiffs’ claim based on

Plaintiffs’ arguments. (See Doc. 23, PAGEID# 288). However, in their Complaint, Plaintiffs

alleged both facial and as-applied challenges. (Doc. 1, PAGEID# 10, 11).

The Board responds that it must be able to conduct its meetings in an efficient

and effective manner. (Doc. 33-1, French Dep. at 98, PAGEID # 473). The Board

points to the language in the Policy itself which explains that the Board must “conduct[]

its meetings in a productive and efficient manner that assures that the regular agenda of

the Board is completed.”

II. ANALYSIS

A. Standard of Review

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “The moving party has the burden of showing an absence

of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). Once the moving party has met its burden of production, the non-

moving party cannot rest on his pleadings, but must present significant probative

evidence in support of his complaint to defeat the motion for summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). These standards upon

which the court evaluates motions for summary judgment do not change simply

because the parties present cross-motions. Taft Broad. Co. v. United States, 929 F.2d

240, 248 (6th Cir. 1991).

B. First Amendment

The First Amendment prohibits the government from “abridging the freedom of

speech.” U.S. Const. Amend. I. Plaintiffs claim the Policy violates the First Amendment

right to speech because it is vague and overly broad. Plaintiffs also claim that the in-

person registration requirement and the proof of residency requirement are invalid prior

restraints on expression. The Court has previously addressed the proper framework for

analyzing these claims in its ruling on Plaintiffs’ Motion for a Temporary Restraining

Order and Preliminary Injunction (Doc. 23) and Plaintiffs’ Motion to Alter Judgment

(Doc. 39). Rather than retread old ground and repeat the same full analysis, the Court

will refer to those rulings when it makes sense.

There is no dispute that the Board’s meetings constitute a limited public forum.

See Featherstone v. Columbus City Sch. Dist. Bd. of Educ., 92 Fed.Appx. 279, 282 (6th

Cir. 2004) (explaining that when opened to the public, a school board meeting is a

limited public forum for discussion of subjects relating to the operation of the schools).

A limited public forum is “a forum that is limited to use by certain groups or dedicated

solely to the discussion of certain subjects.” Pleasant Grove City, Utah v. Summum,

555 U.S. 460, 470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). As the Sixth Circuit has

explained:

In a limited public forum, the government “is not required to and does not

allow persons to engage in every type of speech.” Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151

(2001). The government may restrict speech so long as the restrictions

are viewpoint neutral and “reasonable in light of the purpose served by the

forum.” Miller, 622 F.3d at 535 (quoting Good News Club, 533 U.S. at

106–07, 121 S.Ct. 2093) (internal quotation marks omitted).

Hartman v. Thompson, 931 F.3d 471, 479 (6th Cir. 2019). Plaintiffs argue that the

Policy is not viewpoint neutral because it allows the presiding officer to terminate

speech which is “personally directed,” “antagonistic” or “abusive” or request that

individuals who do not “observe reasonable decorum” leave the meeting.

As the Sixth Circuit has explained:

Viewpoint discrimination is a more “egregious” form of content

discrimination. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). It occurs when speech

is restricted because of the speaker’s viewpoint on the topic—i.e., but for

the perspective of the speaker, the speech would normally be permissible.

See, e.g., Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.

384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding school violated free

speech clause by denying church access to school premises to show film

solely because film had a religious viewpoint).

Id.; see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115

S.Ct. 2510, 132 L.Ed.2d 700 (1995) (defining viewpoint discrimination as “discrimination

in which the government targets not subject matter, but particular views taken by

speakers on a subject.”).

Plaintiffs maintain that by restricting speech which is “personally directed,”

“antagonistic” or “abusive,” the Policy permits the presiding officer to silence those who

have a viewpoint which is critical of the Board. In its previous Order ruling on Plaintiffs’

Motion for Reconsideration (Doc. 39), this Court relied upon Lowery v. Jefferson Cty.

Bd. of Educ., 586 F.3d 427 (6th Cir. 2009) to address the same argument. In Lowery,

the Sixth Circuit explained that a school board may not exclude speech merely because

it criticizes school officials, but may exclude speech if it has the potential to disrupt the

meeting, or threatens illegal acts. Id. at 432 (citing Police Dep't of City of Chicago v.

Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)).2 Plaintiffs argue that

Lowery is no longer good law, and this Court’s decision should be guided by Matal v.

Tam, 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017) and Iancu v. Brunetti, 139 S. Ct. 2294,

2In Lowery v. Jefferson County. Board of Education, the Sixth Circuit upheld a policy

which provided that “[t]he director of schools shall take appropriate steps to determine that

appeals or appearances before the board are not frivolous, repetitive, nor harassing in nature.”

586 F.3d 427, 433 (6th Cir. 2009). The policy also provided that “[t]he chairman shall have the

authority to terminate the remarks of any individual who does not adhere to the above rules or

chooses to be abusive to an individual board member or the Board as a whole.” Id.

204 L. Ed. 2d 714 (2019).3

The Court finds that Matal and Iancu would be dispositive if the Policy only

prohibited criticism based on viewpoint. See Wandering Dago, Inc. v. Destito, 879 F.3d

20, 30 (2d Cir. 2018) (“By rejecting [the plaintiff's] application only on the ground of its

[offensive] branding, defendants impermissibly discriminated against [the plaintiff's]

viewpoint and therefore ran afoul of the First Amendment, whether [the plaintiff's]

speech is categorized as commercial speech, speech in a public forum, or speech in a

nonpublic forum.” (citing Matal, 137 S.Ct. 1744)). However, here, the Policy is aimed at

speech which disrupts the Board’s meeting and prevents the Board from “conducting its

meetings in a productive and efficient manner that assures that the regular agenda of

the Board is completed.”

In American Freedom Defense Initiative v. King County, the Ninth Circuit was

presented with a challenge to a county policy which restricted advertising on the outside

of buses in the county's transit system. The policy stated that the county would reject

“[a]dvertising that contains material that is so objectionable as to be reasonably

foreseeable that it will result in harm to, disruption of or interference with the

transportation system.” 904 F.3d 1126, 1133 (9th Cir. 2018). The policy also provided

that “[f]or purposes of determining whether an advertisement contains such material, the

County will determine whether a reasonably prudent person, knowledgeable of the

County's ridership and using prevailing community standards, would believe that the

3In Iancu v. Brunetti, the Supreme Court struck down a provision of the Lanham Act

prohibiting the registration of “immoral or scandalous” trademarks. Following its decision in

Matal, the Court found the provision violated the First Amendment because it was only possible

to judge what is immoral or scandalous by reference to those concepts as viewpoints. 139 S. Ct.

2294, 2302, 204 L. Ed. 2d 714 (2019).

material is so objectionable that it is reasonably foreseeable that it will result in harm to,

disruption of or interference with the transportation system.” Id. The Ninth Circuit found

that the “disruption clause” in the policy survived facial scrutiny and explained:

We emphasize that Matal does not affect the facial constitutionality of the

disruption clause. Although Matal instructs that Metro may not

discriminate solely on the basis of viewpoint, the disruption clause

discriminates on the permissible, viewpoint-neutral, and objective criterion

of disruption to the transit system. That is, whether or not an ad is

offensive (under a “reasonably prudent person” standard or otherwise),

Metro may reject an ad if harm to the transit system is reasonably

foreseeable.

Id. at 1133-34. In the same way, Defendant’s Policy is directed to the viewpoint-neutral

criterion of disruption of the Board’s meeting. Therefore, the Court concludes that the

Policy does not discriminate solely on the basis of viewpoint. Accord Rosenberger, 515

U.S. at 829-830 (explaining that a content-based exclusion “may be permissible if it

preserves the purposes of that limited forum,” whereas a viewpoint-based exclusion “is

presumed impermissible when directed against speech otherwise within the forum's

limitations”).4 But see Youkhanna v. City of Sterling Heights, 934 F.3d 508, 520 (6th

Cir. 2019), cert. denied, 140 S. Ct. 1114, 206 L. Ed. 2d 183 (2020) (explaining in dicta

that under Matal, a rule against attacking persons or institutions during city council

meetings could be considered viewpoint discrimination).

As such, the Court must determine whether the prohibition on disruptive speech

in the Policy is a valid time, place, and manner regulation. See Perry Educ. Ass'n v.

4The Supreme Court has explained that viewpoint and content discrimination are

separate, but related concepts. Content-based regulations target specific subject matter

regardless of whether they “discriminate among viewpoints within that subject matter.” Reed v.

Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230, 192 L.Ed.2d 236 (2015). “For example, a law

banning the use of sound trucks for political speech—and only political speech—would be a

content-based regulation, even if it imposed no limits on the political viewpoints that could be

expressed.” Id.

Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794

(1983). In its previous rulings, the Court determined that the Policy was constitutional

under this analysis. (Doc. 23, PAGEID# 297). Nothing presented in the parties’ motion

summary judgment motions changes this analysis. Therefore, Defendant is entitled to

summary judgment on this claim and Plaintiffs’ Motion for Summary Judgment is

DENIED as to this claim.

As to the in-person registration requirement, the Court has previously found that

based upon Lowery v. Jefferson County Board of Education, this requirement was not a

prior restraint. (Doc. 23, PAGEID# 299). Instead, the requirement is a content-neutral

which is a valid time, place and manner regulation. (Doc. 23, PAGEID# 300).

Therefore, Defendant is entitled to summary judgment on this claim and Plaintiffs’

Motion for Summary Judgment is DENIED as to this claim.

With regard to the residency requirement, the Court has previously concluded

that Plaintiffs do not have standing to challenge the Policy’s residency requirement.

(Doc. 23, PAGEID# 290).5 While the Court understands the concern when this

requirement is applied to parents who live outside the district, the Court also notes that

Section A of the Public Participation Policy allows anyone with a legitimate interest to

participate in the public portion of the meeting. (See Doc. 33-1, PAGEID # 657).6

5Moreover, the Eleventh Circuit has rejected the claim that a similar residency

requirement for speakers during a city council meeting was overbroad on its face and therefore

violated the First Amendment. Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802 (11th Cir. 2004).

6The Policy provides:

A. Any person or group wishing to place an item on the agenda shall register

their intent with the Superintendent no later than seven (7) days prior to the

meeting and include:

Therefore, Defendant is entitled to summary judgment on this claim and Plaintiffs’

Motion for Summary Judgment is DENIED as to this claim.

Finally, the Court turns to Plaintiffs’ as-applied claim based upon the removal of

Billy Ison from the May 22, 2018 Board meeting. While the Court is not entirely clear

whether Plaintiffs are pursuing this claim, the Court nevertheless concludes that

Defendant is entitled to summary judgment on any such claim. During the May 22,

2018 Board meeting, Ison spoke out against the Board’s decision to arm its staff. (Doc.

29, Ex. 6). Board President David French interrupted Ison because he was personally

attacking people. (Doc. 31-3, David French Dep. at 129, PAGEID# 481). French

warned Ison that if he did not stop he would have to sit down. (Id.) Near the end of his

remarks, Ison used language and demeanor which French determined was for the

purpose of antagonizing the Board. (Id. at 133). Board Member Angela Whiteman

interrupted Ison and told him to “stop making false and slanderous statements.” (Doc.

29, Ex. 6). French observed Ison pointing at people in the audience and again asked

him to stop. (French Dep. at 133-34). French heard people in the audience begin to

respond to Ison “and saying stuff out loud, and it’s like that’s enough, let’s calm down,

stop.” (Id. at 135). After Ison continued, French asked a school resource officer to

escort Ison from the meeting. (Id. at 137). Ison concluded his remarks and walked out

of the meeting with the officer. (Id. at 139).

As one district court has observed, “[t]he standard for whether an individual is

1. name and address of the participant;

2. group affiliation, if and when appropriate;

3. topic to be addressed.

Such requests shall be subject to the approval of the Superintendent and the

Board President.

disruptive or created a disturbance is low.” Young v. Cortune, Case No. 17cv329, 2019

WL 2636069, at *7 (D.N.J. June 27, 2019). That is because “[t]he interruption of the

order of business is itself the disturbance.” Id. (quoting Galena v. Leone, 638 F.3d 186,

212 (3d Cir. 2011)). Based on the facts before it, the district court determined that the

plaintiff created a disturbance and it was permissible to remove him from the hearing:

He interrupted Senator Ruiz on multiple occasions while she was

attempting to ask him to finish his statement and move on to the next

speaker. When asked to finish up his comments, he refused. At the end

of this statement, as Senator Ruiz states she is about to take a recess,

Plaintiff can be heard saying “I’m not leaving.” Plaintiff created a

disturbance because his actions delayed Senator Ruiz’s ability to call the

next speaker and hear more testimony.

Id.; see also Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004) (“As

we have observed, speech at a citizen’s forum may be limited according to its

germaneness to the purpose of the meeting. At any rate, the overwhelming, and wholly

sufficient, motive to eject David Eichenlaub from the meeting was the perfectly

sustainable and content-neutral desire to prevent his badgering, constant interruptions,

and disregard for the rules of decorum.”); cf. Teufel v. Princeton City Sch. Dist. Bd. of

Educ., No. 1:12-CV-355, 2013 WL 143808, at *14 (S.D. Ohio Jan. 11, 2013) (“While the

Court finds that limiting repetitive, harassing, or frivolous language at a school board

meeting does in fact advance legitimate government interests, such interests were

clearly not advanced by prohibiting Plaintiff from speaking where, under the undisputed

facts, he had not spoken in ten months, he claimed to be raising new issues, he was

limited to three minutes, and no other individuals had asked to speak.”).

This Court concludes that based on the facts of this case, Plaintiffs have not

established an as-applied violation of the First Amendment based on Ison’s removal

from the May 22, 2018 Board meeting. Therefore, Defendant is entitled to summary

judgment on this claim and Plaintiffs’ Motion for Summary Judgment is DENIED as to

this claim.

III. CONCLUSION

Based on the on the foregoing, Plaintiffs’ Motion for Summary Judgment (Doc.

29) is DENIED; and Defendant Madison Local School Board’s Motion for Summary

Judgment (Doc. 33) is GRANTED. This matter shall be CLOSED and TERMINATED

from the active docket of the Court.

IT IS SO ORDERED.

/s/ Michael R. Barrett

JUDGE MICHAEL R. BARRETT