MARSHALL v. CLARKE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DOUGLAS MARSHALL, et al., :

Plaintiffs ‘ CIVIL ACTION

v □

PETER C. AMUSO, et al., No. 21-4336

Defendants :

MEMORANDUM

PRATTER, J. NOVEMBER ‘7. 2021

“You don’t suppose this kind of thing is ever finished, do you? Tomorrow it’ll be

something else... .” Inherit the Wind (1955).

The plaintiffs in this case seek a preliminary injunction to prevent application of certain

provisions in Pennsbury School Board policies that restrict speech at public meetings. Because

the plaintiffs are likely to demonstrate that the challenged policy provisions violate the First

Amendment’s prohibition on viewpoint discrimination and because protecting free speech serves

the public interest, the Court will grant a preliminary injunction as further discussed below and

specified in the accompanying Order.

BACKGROUND

L School Board Policies

The Pennsbury School Board invites public comment at its meetings. Doc. No. 4-7, at 1.

The Board’s Policy 903 governs public participation in school board meetings and Policy 922

(designated by the Board as the “Civility Policy”) applies to all school activities, /d.; Doc. No. 4-

9, at 1.' Any taxpayer, school employee, or student is allowed five minutes to make a comment,

' The District argues that Policy 922 was designed for other meetings rather than School Board meetings

and operates more as precatory language for School Board meetings. Nov. 8, 2021 Tr. at 166:16—18,

However, nothing in Policy 922 makes this distinction for School Board meetings. The plain language of

subject to certain requirements and restrictions. Doc. No. 4-7, at 3. Speakers “must preface their

comments by an announcement of their name, address, and group affiliation if applicable.” Jd.

The Board’s presiding officer may interrupt or terminate public comments deemed “too lengthy,

personally directed, abusive, obscene, or irrelevant.” Jd The presiding officer may also “[r|equest

any individual to leave the meeting when that person does not observe reasonable decorum” and

can “[r]equest the assistance of law enforcement officers to remove a disorderly person when that

person’s conduct interferes with the orderly progress of the meeting.” Jad. Similarly, “offensive,

obscene or otherwise inappropriate banners or placards, or those that contain personal attacks” are

prohibited. Jd. at 4.

In 2020, the COVID-19 pandemic temporarily shifted Pennsbury School Board meetings

to a virtual setting. The Board received written submissions from “speakers” in advance of each

virtual meeting. Doc. No. 44-4 9@ 8-13. By the January 2021 meeting, the School Board began

screening comment submissions for violations of Policy 903 and then informing commenters via

email if their comments were rejected for such a violation. Nov. 12, 2021 H’rng Tr. at 8:5-13;

Doc. Nos. 4-13, 4-14, 4-15. Acceptable written comments were posted on the Board’s website.

Nov. 8, 2021 H’rng Tr. at 132:16-20. This practice continued until the Schoo! Board returned to

in-person meetings in March 2021. Doc. No. 44-4 439. The School Board posts videos of each

public Board meeting on its website. Doc. No. 44-4 443.

Policy 922 includes “any type of district meeting” and the prohibitions in it largely overlap the prohibitions

in Policy 903. Doc. No. 4-9, at 2.

IL. Application of School Board Policies

Plaintiffs are four Pennsbury School Board meeting attendees whose public comments

have been interrupted or terminated by Board members or designees based on Policy 903.2 The

parties have submitted videos of each meeting for the Court’s review as part of this litigation,

In March 2021, Mr. Marshall gave a public comment without interruption. However, after

the meeting video from that session was posted on the District’s website, the Board decided to take

the video off the website to revise certain of Mr. Marshall’s comments to remove his comments

the Board deemed after-the-fact to be in violation of Policy 903, Doc. No. 44-4 9 41-42. School

Board President Christine Toy-Dragoni then issued a public statement explaining that the

comments were removed because they “were abusive and irrelevant to the work taking place in

the Pennsbury Schoo! District.” Doc. No. 4-17, at2. Ms. Toy-Dragoni stated that “[t}he comments

escalated from expressing a viewpoint to expressing beliefs and ideas that were abusive and coded

in racist terms, also known as ‘dog whistles.’” /d. She also apologized to the community for not

interrupting Mr. Marshall as he was making his comments. /d. The Board’s post-meeting actions

(including the Board President’s public apology) were prompted by Dr. Cherrissa Gibson, the

District’s Director of Equity, Diversity & Education, who, after the meeting where Mr. Marshall

spoke, conferred with the Board about her views of Mr. Marshall’s comments. Nov, 8, 2021 H’mg

Tr. at 109:21-110:6. Two weeks after the Board-edited video was posted, it was replaced with

the full, unedited version. Doc. No. 44-4 4 45.

? Two of the plaintiffs also submitted written comments for virtual meetings that the Board rejected for

violating Policy 903. Doc. No. 44-4 9 27, 31. The temporary procedure of receipt and review of written

comments in lieu of in-person public comments has been discontinued with the return to in-person School

Board meetings. Nov. 8, 2021 H’rng Tr. at 106:14-107:2. The Court makes no comment about any future

resumption of efforts to review and publish written comments, other than to observe that this ruling would

have implications for such a practice.

Then, at the May 2021 Board meeting, three of the plaintiffs claimed five minutes each in

order to speak: Mr. Daly, Mr. Marshall, and Mr. Abrams. /d. | 49. The meeting agenda included

a presentation on the Pennsbury School District’s equity program, /d. § 46. Mr. Amuso, the

School Board’s Assistant Solicitor, interrupted each of Mr. Daly’s, Mr. Marshall’s, and Mr.

Abrams’s comments at the May 2021 meeting for alleged violations of Policy 903. First, Mr. Daly

began by defending what the Board’s representative deemed to be Mr. Marshall’s “abusive” March

2021 comments. Jd. ] 49(a). Mr. Amuso demanded that Mr. Daly terminate his comments because

he (Mr. Amuso) considered them to also be abusive and irrelevant and thus in violation of Policy

903. id. 50. He also interrupted Mr. Marshall’s comments because Mr. Marshall referred to the

equity policy using a different programmatic title rather than the Board’s formal chosen title for

that program/policy, and then Mr, Amuso terminated Mr. Marshall’s comments as abusive and

itrelevant. Id. § 52; May 20, 2021 Meeting Video at 1:47:15.7 Mr. Abrams endeavored to discuss

sutvey results for the equity policy and voiced his opposition to funding a program for the portion

of respondents that reported they were unhappy, and Mr. Amuso terminated Mr. Abrams’s

comments as “irrelevant to diversity in education.” Doc. No. 44-4 {ff 49(c), 53. In each instance,

Mr. Amuso shouted over the speakers during their allotted time segments, yelling “you’re done!”

repeatedly until the speaker left the microphone. Doc. No. 4-3 € 18; Doc. No. 4-4 4 27; Doc. No.

459114

3 The May 20, 2021 meeting video is available at http://video.pennsburysd.org/video/553350697.

+ But for the implication of, and intrusion upon, the First Amendment, perhaps the shouting match between

Mr, Amuso and Mr. Marshal! about the name of the “equity policy” could have been best characterized as

a childish willful contest of semantics or an embarrassing version of “My dog’s bigger than your dog! Is

not! Is so!” But it cannot be dismissed as such. Rather, it is indicative of representatives of a public entity

taking the opportunity to squeich plaintiffs’ views as apostasy. That behavior by members and

representatives of the School Board underscores the problems inherent with a subjective interpretation of

terms like “irrelevant,” most especially where the School Board member or representative seems to have a

personal interest in the topic at issue.

At the June 2021 meeting, the School Board enforced the address announcement

requirement by reminding speakers to state aloud their home addresses at the beginning of their

remarks. Doc. No. 4-4 429, At this meeting, Mr. Campbell criticized Policy 903 and the School

Board’s implementation of it. Doc. No. 4-6 7(a). He was able to finish his remarks, but Solicitor

Michael Clarke interrupted a portion of Mr. Campbell’s allotted speaking time to lecture him that

personal insults or personally directed comments would lead to his comments being terminated,

7(b}. Mr. Abrams, Mr. Marshall, and Mr. Daly also spoke for their full five minutes. See

Doc. No, 44-8.

The parties agree that the address announcement requirement has not been enforced since

the June 2021 meeting. Doc. No. 44-4 459. However, the parties also agree that it has not been

rescinded and remains part of Policy 903 as written. Nov. 8, 2021 H’rng Tr. at 127:22-128:9.

Mr. Daly, Mr. Abrams, and Mr, Campbell each spoke at the August 2021 meeting. See

Doc. No. 44-9. Despite each of the three speakers making apparently personally-directed

comments, none were then interrupted for violations of Policy 903. fd Mr. Campbell testified in

court that he observed an armed police presence at the August 202] meeting, Nov. 8, 2021 H’rng

Tr. at 15:24-16:1, At the court hearing, witnesses for the Pennsbury School District did not dispute

the police presence at this meeting or the fact that Policy 922 provides for removal of speakers by

law enforcement personnel. Nov. 8, 2021 H’rng Tr. at 162:22—163:5; Doc. No. 4-7, at 2.

Several of the plaintiffs have expressed under oath their concerns about being thrown out

of public Board meetings as warned in the Policy or as a result of comments to that effect made

by or on behalf of the Board at meetings. They testified that this has either caused them to refrain

from speaking at subsequent meetings or to cabin their comments. Doc. No. 4-3 {[ 21; Doc. No.

4-6 | 10; Nov. 8, 2021 H’rng Tr. at 9:17-10:6, 26:7-16, 75:24—76:7.

‘The plaintiffs seek to enjoin the defendants (collectively, the “District”) from enforcing

(1) Policy 903’s prohibitions of speech deemed “personally directed,” “abusive,” “irrelevant,”

“offensive,” “otherwise inappropriate,” or “personal attacks;”; (2) Policy 922’s similar

prohibitions of speech deemed “offensive,” “inappropriate,” “intolerant,” “disruptive,” and

“verbally abusive” (collectively, the “Challenged Policy Terms”); and (3) Policy 903’s address

announcement requirement. Doc. No. 4-1, at 1.

A hearing on the preliminary injunction was held on November 8, 2021, with closing

arguments presented on November 12, 2021. The next public Board meeting is scheduled for

November 18, 2021.

LEGAL STANDARD

The purpose of issuing a preliminary injunction is to maintain “the status quo until a

decision on the merits of a case is rendered.” Acierno v. New Castle Cnty., 40 F.3d 645, 647 (3d

Cir. 1994), “A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). “In each case, courts ‘must balance the

competing claims of injury and must consider the effect on each party of the granting or

withholding of the requested relief.’” Jd. (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 US.

531, 542 (1987)).

The Court may grant a preliminary injunction only if “(1) the plaintiff is likely to succeed

on the merits; (2) denial will result in irreparable harm to the plaintiff; 3) granting the injunction

will not result in irreparable harm to the defendants; and (4) granting the injunction is in the public

interest.” P.C. Yonkers, Ine. y. Celebrations the Party Seasonal Superstore, LLC, 428 F.3d 504,

508 (3d Cir. 2005) (internal quotation marks omitted). Ifthe first two “gateway factors are met, a

court then considers the remaining two factors and determines in its sound discretion if all four

factors, taken together, balance in favor of granting the requested preliminary relief.” Reilly v.

City of Harrisburg, 858 F.3d 173, 179 Gd Cir. 2017).

DISCUSSION

The Court will examine each of the four prelimimary injunction factors tn turn.

1. Likelihood of Success on the Merits

While the moving party typically faces the burden to establish the likelihood of success on

the merits, “[i]n First Amendment cases the initial burden is flipped.” Greater Phila. Chamber of

Com. y. City of Phila., 949 F.3d 116, 133 Gd Cir. 2020). “The government bears the burden of

proving that the law is constitutional” and, as a result, “the plaintiff ‘must be deemed likely to

prevail’ if the government fails to show the constitutionality of the law.” /d. (quoting Reilly, 858

F.3d at 180).

The First Amendment protections for free speech apply to speaking at public school board

meetings. City of Madison, Joint Sch. Dist. No. 8 vy. Wis. Emp. Rets. Comm'n, 429 U.S. 167, 174-

75 (1976).° The parties agree that a school board meeting is a limited public forum. See Doc. No.

4-2, at 10; Doc. No. 43-1, at 6. In a limited public forum, “[clontent-based restrictions are valid

as long as they are reasonable and viewpoint neutral.” NAACP v. City of Phila., 834 F.3d 435, 441

(3d Cir. 2016). However, “viewpoint discrimination is impermissible in any forum.” Cpr. for

Investigative Reporting v. Se. Pa. Transp, Auth., 975 F.3d 300, 313 Gd Cir. 2020), cert. denied

sub nom, SEPTA vy. Ctr. for Investigative, No. 20-1379, 2021 WL 4507651 (Oct. 4, 2021).

“Jn determining whether the State is acting to preserve the limits of the forum it has

created so that the exclusion of a class of speech is legitimate, [the Supreme Court has] observed

5 Where speech also implicates the right to petition, “courts have generally applied Speech Clause

precedent, rather than any freestanding Petition Clause doctrine.” Mirabella v. Villard, 853 F.3d 641, 654

(3d Cir. 2017).

a distinction between, on the one hand, content discrimination, which may be permissible if it

presetves the purposes of that limited forum, and, on the other hand, viewpoint discrimination,

which is presumed impermissible when directed against speech otherwise within the forum’s

limitations.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995),

“When the government targets not subject matter, but particular views taken by speakers on a

subject, the violation of the First Amendment is... blatant.” /d at 829. “The government must

abstain from regulating speech when the specific motivating ideology or the opinion or perspective

of the speaker is the rationale for the restriction.” /d Apropos of the case at hand, “[i]f the topic

of debate is, for example, racism, then exclusion of several views on that problem is just as

offensive to the First Amendment as exclusion of only one.” /d. at 831.

“Giving offense is a viewpoint.” Matal v. Tam, 137 S, Ct. 1744, 1763 (2017).

“{Dlisfavoring ideas that offend discriminates based on viewpoint, in violation of the First

Amendment.” Jancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019) (internal quotation marks omitted),

A viewpoint need not be political; any form of support or opposition to an idea could be considered

a viewpoint. Maral, 137 S. Ct. 1744 at 1766 (Kennedy, J., concurring in part) (“The First

Amendment’s viewpoint neutrality principle protects more than the right to identify with a

particular side. It protects the right to create and present arguments for particular positions in

particular ways, as the speaker chooses.”’).

The District here argues that Policies 903 and 922 are facially valid because “there is no

language in either [policy] that identifies any particular viewpoint, political affiliation, etc. that is

not permitted.” Doc. No. 44-1, at 6. However, the plaintiffs argue that the application of the

Challenged Policy Terms to interrupt or terminate their five minutes’ worth of public comments

violated their free speech rights and they argue that the terms at issue are facially invalid because

they are overbroad and vague.

A. As-Applied Challenge

The District argues that the School Board did not technically engage in viewpoint

discrimination in interrupting or terminating each plaintiff's comments because each plaintiff was

able to provide opinions in opposition to the same agenda items at least on a variety of occasions.

The District also avers that “even assuming, arguendo, that [Mr.] Marshall had some protected

speech in the video, which is expressly denied, there was no viewpoint discrimination when his

comments were edited from the video.” Doc. No. 44-1, at 5.° The plaintiffs argue that the

Challenged Policy Terms are unconstitutional as applied to their exercise of their rights of free

speech. Doc. No. 4-2, at 14.

Public speech at school board meetings is in fact protected by the First Amendment. City

of Madison, Joint Sch, Dist. No. 8, 429 U.S. at 174. And allowing a viewpoint to be offered on

some occasions without interruption does not prove the policy viewpoint neutral. Indeed, selective

enforcement of a policy only when a presiding officer is feeling provoked does not help to support

the policy’s constitutionality. See infra Section 1.B.1. The School Board personnel interrupted

and terminated comments deemed “personally directed” as violations of Policy 903. As Policy

903 is applied (and as confirmed by the Board’s witnesses and counsel at the preliminary

injunction hearing), positive and complimentary personally-directed comments supportive of

Board and school employees are permitted to be expressed, but negative, challenging, or critical

personally-directed comments are prohibited. Nov. 8, 2021 H’rng Tr. at 104:7—-14, 105:1-4; Nov.

12,2021 H’rng Tr. at 39:2-15. Likewise, those who express support for a decision by singling out

6 Under its shifted burden, the District provides no basis on which this Court could find that any of the

plaintiffs’ speech is not protected speech.

a School Board member are welcome, but those who criticize a decision are cut off. This is

viewpoint discrimination regardless of whether speakers are at other times allowed to make a

verbal personal attack.

The School Board has also censored and terminated comments deemed “abusive” because

they include comments deemed offensive racial stereotypes. While this Court does not address

the School Board’s or its employees’ assessment of whether the speech was offensive or to whom,

suffice it to say that the First Amendment protects offensive speakers. The Policy terms invoked

to terminate the offensive comments (“abusive” and “personally directed”) “prohibit speech purely

because it disparages or offends.” Ison v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887, 894

(6th Cir, 2021); see also Texas v. Johnson, 491 U.S. 397, 414 (1989) (Lf there is a bedrock

principle underlying the First Amendment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea itself offensive or disagrecable.”),

This, too, is impermissible viewpoint discrimination. The District has not carried its burden to

demonstrate otherwise.

Additionally, the plaintiffs argue that, while the policy terms “irrelevant” and “disruptive”

may survive a facial challenge, the District engaged in viewpoint discrimination in applying these

terms to the plaintiffs’ speech. Doc, No. 4-2, at 14. Mr. Amuso terminated several comments as

“irrelevant,” including terminating Mr. Abrams’s comments solely on the basis that they were

deemed by Mr. Amuso to be irrelevant. Doc. No. 44-4 4 53. However, it is unclear how Mr.

Abrams’s comments about the District’s equity survey could be considered “irrelevant” to the

meeting agenda item of the District’s equity policy. Mr. Amuso also interrupted Mr. Marshall’s

comments, stating that his comments were “irrelevant” if he (Mr. Marshall) referred to the equity

policy by a different name. fd. 1 52; May 20, 2021 Meeting Video at 1:47:15, Mr. Amuso applied

10

his own (or perhaps the Board’s) subjective interpretation of relevance, deeming Mr. Abrams’s

and Mr. Marshall’s comments “irrelevant to diversity in education.” Jd. 52-53. Yet, itis clear

that both Mr. Abrams and Mr. Marshall spoke about the equity policy, a topic plainly on the

agenda. Further, the Board opened this comment period “for public comment on agenda and non-

agenda items.” May 20, 2021 Meeting Video at 1:37:23. The Court questions how a comment

about a District policy during a period open to “non-agenda items” could be considered

“irrelevant” except under a subjective interpretation of what arguments are acceptable to the Board

and its representatives. The District fails to establish that its application of the term “irrelevant”

does not constitute viewpoint discrimination as would be necessary to carry its shifted burden.

The plaintiffs also challenge the application of the term “disruptive.” When Mr. Amuso

terminated Mr. Marshall’s comments at the May 2021 meeting, he informed Mr. Marshall that his

comments were terminated under Policy 903 because Mr. Marshall was “being disruptive and

disorderly.” May 20, 2021 Meeting Video at 1:51:25. However, the District has offered no basis

on which this Court could find that Mr. Marshall was being disruptive. During his May 2021

comments, as seen and heard on the video recording, Mr, Marshall did not raise his voice or speak

out of turn, The plaintiffs argue that application of the term “disruptive” is applied by or on behalf

of the Board in a way that effectuates viewpoint discrimination because “[a]nything [the School

Board members] don’t wish to hear is ‘disruptive’ to their worldview.” Doc. No. 4-2, at 15, Similar

to the term “offensive,” the term “disruptive” reaches constitutionally-protected speech when it is

applied to ideas being expressed. Because the evidence shows that the School Board applied the term

“disruptive” to disruptive ideas rather than disruptive conduct, this too constitutes viewpoint

discrimination.

Therefore, the District has not met its burden to show that the as-applied challenge is

unlikely to succeed on the merits.

li

B. Facial] Challenge

The plaintiffs also challenge the following terms as unconstitutionally vague and

overbroad: “personally directed,” “abusive,” “offensive,” “otherwise inappropriate,” “personal

attack,” “inappropriate,” and “intolerant.” Doc. No. 4-2, at 15-17.

1. Vagueness

A policy is unconstitutionally vague “if it fails to provide people of ordinary intelligence a

reasonable opportunity to understand what conduct it prohibits.” Adams Outdoor Advert. Ltd.

P'ship by Adams Outdoor GP, LLC y, Pa. Dep’t of Transp., 930 F.3d 199, 205 (3d Cir. 2019)

(quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)), “Although there is no requirement of narrow

tailoring in a nonpublic [or limited public] forum, the State must be able to articulate some sensible

basis for distinguishing what may come in from what must stay out.” Minnesota Voters All. v.

Mansky, 138 S. Ct. 1876, 1888 (2018). While some degree of discretion in how to apply a given

policy is necessary, “that discretion must be guided by objective, workable standards” to avoid the

moderator’s own beliefs shaping his or her “views on what counts” as a policy violation. /d. at

1891. “The need for specificity is especially important where, as here, the regulation at issue is a

‘content-based regulation of speech. The vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on free speech.’” Sypniewski v.

Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 266 (3d Cir. 2002) (quoting Reno v. ACLU, 521

USS. 844, 871-72 (1997)).

Policies 903 and 922 are vague because they are irreparably clothed in subjectivity. What

may be considered “irrelevant,” “abusive,” “offensive”, “intolerant,” “inappropriate” or

“otherwise inappropriate” varies from speaker to speaker, and listener to listener. For example,

the District argues that, as applied, the “personally directed” element also requires one of the other

12

elements such as “abusive” or “offensive”, yet the text of neither policy makes such a distinction

or pairing. Nov. 12, 2021 H’rmg Tr. at 40:12-41:4; see also Doc. Nos. 4-7 & 4-9. While the

District’s counsel contends that the lack of such a connection requiring “personally directed” plus

another element “might just be a grammatical error,” Nov. 12, 2021 H’rng Tr. at 40:25—-41:4, this

excuse only further confirms the vagueness of the policies. Even if a reasonable reading did

require a personally directed “plus” comment (which it does not), the adjacent terms such as

“abusive” and “irrelevant” are also vague. Calling for a School Board member’s resignation, for

example, is “personally-directed” and could be considered “irrelevant” to an underlying issue or

problem, but it could also be considered highly relevant to the School Board member’s role in

creating or failing to address or solve the issue or problem.

In parsing out these subjective terms, the School Board has presented no examples of

guidance or other interpretive tools to assist in properly applying Policies 903 and 922 to public

comments. Policy 922 expressly requires the development of “administrative guidelines

implementing this policy” including “examples of conduct/behavior that is in violation of this

policy,” yet the District has not developed such guidelines. Doc. No. 4-9, at 2; Nov. 8, 2021 H’rng

Tr. at 167:4-12. The District presents no evidence of “objective, workable standards” to guide the

presiding officer’s exercise of discretion. Mansky, 138 S. Ct. at 1891. Allowing little more than

the presiding officer’s own views to shape “what counts” as irrelevant, intolerant, abusive,

offensive, inappropriate, or otherwise inappropriate under the policies openly invites viewpoint

discrimination. Ctr. for Investigative Reporting, 975 F.3d at 316.” “[T]he lack of structure and

7 ‘The Court also notes that the policies do not provide authority for the School Board to delegate the

presiding officer role to a neutral party. See Doc, No. 4-7. Policy 903 appears to envision that the School

Board President will serve as the presiding officer, stating “The Board President will call speakers to the

microphone in order according to the sign-in sheet.” /d, at 4. The Assistant Solicitor is not listed as a

School Board member. See https://go.boarddocs,com/pa/psbr/Board.nsf/Public (accessed Nov. 15, 2021).

13

clear policies governing the decision-making process creates a real risk that it may be arbitrarily

applied.” /d at 317. Therefore, Policies 903 and 922 are not “capable of reasoned application”

and the District has not demonstrated its likelihood of success on the facial challenge. Afansky,

138 S. Ct. at 1892.

2. Overbreadth

The Court will also address the overbreadth challenge as an additional basis for the

plaintiffs’ likelihood of success on the merits. “[W]agueness and overbreadth [are] logically

related and similar doctrines.” Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983). “A regulation

of speech may be struck down on its face if its prohibitions are sufficiently overbroad—that is, if

it reaches too much expression that is protected by the Constitution.” Sypniewski, 307 F.3d at 258.

“( A] policy can be struck down only if no reasonable limiting construction is available that

would render the policy constitutional.” Sypniewski, 307 F.3d at 259, Further, the Third Circuit

Court of Appeals has “adopted a ‘more hesitant application,’ of the overbreadth doctrine within

public schools.” JS. ex rel. Snyder v. Blue Mt. Sch. Dist., 650 F.3d 915, 935 (Gd Cir, 2011)

(quoting Sypniewski, 307 F.3d at 259). School boards are unlike other deliberative legislative

bodies because children regularly attend their meetings. Doe v. Indian River Sch. Dist., 653 F.3d

256, 280 (3d Cir. 2011). However laudable the desire to be conscientious when it comes to adult

behavior as may be witnessed by children,® the School Board cannot hide behind the possible

presence of children to justify an unconstitutional policy. The burden to demonstrate that a policy

is facially constitutional still rests on the School Board as the party opposing a preliminary

injunction in a First Amendment context.

Yet it was Mr, Amuso, as the Assistant Solicitor, who enforced Policy 903 at the May 2021 meeting. Nov.

8, 2021 H’rmng Tr. at 82:18-21, 116:14-25,

8 The Court does not doubt that the School Board members have earnestly held views about what children

should be learning. It is the reality that others have other views that prompts this case.

14

The policies here are overbroad because they prohibit a broad array of constitutionally

protected speech. The policies prohibit speech that is “offensive,” which the Supreme Court has

specifically held is an unconstitutional restriction on protected speech. fancu, 1398. Ct. at 2301;

see also Street v. New York, 394 U.S, 576, 592 (1969) (‘It is firmly settled that under our

Constitution the public expression of ideas may not be prohibited merely because the ideas are

themselves offensive to some of their hearers.”). The Supreme Court has also found the term

“abusive” overly broad in other contexts, reaching conduct outside the “fighting words” category

of unprotected speech. Gooding v. Wilson, 405 U.S. 518, 525 (1972). The phrases “intolerant,”

“inappropriate” and “otherwise inappropriate” would appear to thwart even more protected speech

than “abusive.”

The Schoo! Board presents no persuasive argument in support of the constitutionality of

these terms. For example, the School Board acknowledges that a taxpayer’s opinions on hiring

and firing school employees are relevant to its business. Nov. 8, 2021 H’rng Tr, at 141:4-7.

However, the provision prohibiting “personally directed” comments must, under any reasonabie

interpretation, prohibit such commentary. The District Solicitor’s comments during the December

2020 public meeting confirm this interpretation: Mr. Clarke stated that if someone “begin[s] to

talk about ‘the criminal behavior of this department’ or ‘how incompetent this one is,’ that begins

to violate our policy.” Doc. No. 4-49 18.

By characterizing criticism of a District employee’s possible wrongful conduct or

competence as “personally directed” or “abusive”, the District itself demonstrates the overbreadth

of its policy. An opinion that a school employee is incompetent in performing school duties or

violating the law governing the performance of the employee’s duties is in fact relevant to the

purpose of the limited public forum and presents a viewpoint against which the School Board may

15

not discriminate. While the School Board could sensibly prohibit personal attacks not related to

the School Board’s business (e.g., criticizing a school employee’s personal relationships, accent

or preferred home decor), Policies 903 and 922 contain no limiting language to suppoit this

interpretation as a reasonable one for purposes of overbreadth analysis. The Challenged Policy

Terms reach too much protected speech under any reasonable interpretation of the language of the

policies themselves,

Therefore, the District also fails to show that the Challenged Policy Terms are likely.

constitutional under the overbreadth analysis.

C. Address Announcement Requirement

The plaintiffs argue that the address announcement provision is facially invalid because of

its chilling effect on protected speech. “Being potentially forced to state their home address when

speaking out on controversial issues weighs on Plaintiffs’ minds, and inhibits their desire to keep

speaking out for fear of reprisal by those who do not tolerate their points of view.” Doc. No. 4-2,

at 8-9, The District generally does not argue in support of the address announcement requirement,

instead asserting that it has not been enforced since the June 2021 meeting.

The right to free speech also encompasses the right to refrain from speaking. Janus v.

AFSCME, 138 S. Ct. 2448, 2463 (2018). Compelled speech is subject to the same analysis as

prohibitions from speaking, Riley v. Nat’l Fed’n of the Blind of N.C, Inc., 487 U.S. 781, 796-97

(1988). As discussed above, school board meetings are a limited public forum where restrictions

need only be reasonable and viewpoint-neutral. However, the District provides no argument in

support of forcing speakers to state their home address. While the right to speak at Pennsbury

School Board meetings is limited to students, employees, and residents within the District,

requiring the speaker to announce their specific home address is an unreasonable restriction. Each

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speaker’s address can be collected when they sign up for their speaking slot. Doc. No. 4-7, at 2.

And in meetings besides the June 2021 meeting, speakers have simply provided their township

when signing in and speaking. Doc. No. 4-5 | 13; Nov. 8, 2021 H’rmg Tr. at 128:5-9. In contrast,

the chilling effect of being forced to announce to all present one’s actual home address before

speaking on a hotly-contested issue is clear.

Therefore, the School Board has not met its burden to demonstrate that it is likely to

succeed on the merits with regard to either the Challenged Policy Terms or the address

announcement requirement in Policies 903 and 922.

Il. Risk of Irreparable Harm to Plaintiffs

Next, the plaintiffs must demonstrate that there is a risk of irreparable harm absent a

preliminary injunction, “If the government cannot establish that the law is constitutional, the

challenger must still demonstrate irreparable harm, though that is generally presumed where the

moving party’s freedom of speech right is being infringed.” Greater Phila. Chamber of Com., 949

F.3d at 133. “The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

The District argues that this particular case does not present a risk of irreparable harm

because the plaintiffs continued speaking at various School Board meetings after their comments

were interrupted or terminated for violations of Policy 903. Doc. No. 44-1, at 9. They argue that

any alleged harm is “speculative” and that the plaintiffs lack any evidence to support claims of

chilled speech. Jd. at 10.

The Court recognizes that the plaintiffs spoke again at the meetings for which video records

were supplied after the invocations of Policy 903, including some quite heated comments at the

August 2021 meeting that went uninterrupted. See, e.g., Doc. No. 44-9, at 1:52:10. Indeed, Mr.

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Daly openly admits that he has at times “tested the boundaries” of the policies since the May 2021

meeting. Doc. No. 4-5 § 12.

Here, however, the past is prologue. The School Board has stated that it will continue to

enforce the policies in the future by arguing that its members and representatives believe the

policies are necessary to prevent undesirable use of the five-minute periods. The School Board

even hyperbolically predicts that refraining from enforcement would “undoubtedly” lead to

violence. Doc. No. 44-1, at 11. Given that the School Board has vigorously defended its

applications of Policy 903 thus far and admits no wrongdoing, a future meeting certainly raises the

spectre of more interruptions and terminations of speech based on Policy 903. Mr, Marshall

testified that the possibility of such terminations has already chilled his speech because he is

conflict averse. Nov. 8, 2021 H’rng Tr. at 75:22-76:7. The Court considers this testimony

credible, particularly in light of the presence of armed police officers and of security guards and

the threat of removal from school property in front of fellow community members. Because any

“loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury,” the Court finds that there is risk of irreparable injury to plaintiffs if the

Challenged Policy Terms are not enjoined. Elrod, 427 U.S. at 373.

There is also risk of irreparable harm in allowing the address announcement requirement

to stay on the books. The District argues that the requirement has not been enforced since June

2021. The plaintiffs do not dispute this. However, the District has provided no justification for

its decision to invoke the requirement at the June 2021 meeting and has not stated to the public

that the requirement will not be enforced in the future. Nov. 8, 2021 H’rng Tr. at 127:22-128:9

(acknowledging that no announcement regarding the relaxation of the address announcement

requirement has been made). Because forcing speakers to announce their home address before

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public comment is likely to chill speech, the plaintiffs have demonstrated that allowing the address

announcement requirement to stay on the books raises a risk of irreparable harm,

Il. Risk of Irreparable Harm to Defendants

The District argues that granting the preliminary injunction with respect to the prohibitions

in Policies 903 and 922 raises a risk of irreparable harm to it because the preliminary injunction

would effectively convert the School Board meetings from a limited public forum to a public forum

and could lead to violence. The Court finds these arguments deliberatively provocative and

unconvincing.

First, the District argues that “if the Court grants this relief, members of the public will be

permitted to make obscene, irrelevant and personal attacks against anybody for 5 minutes during

school board meetings.” Doc. No. 44-1, at 11. Not so. The plaintiffs do not challenge the

prohibition on “obscene” comments or the “reasonable decorum” requirement in their motion for

a preliminary injunction.” Removal of the term “irrelevant” raises the biggest risk of reducing the

effectiveness of public comment, but the District itself sets whether a comment period is open to

agenda or non-agenda items. The five-minute time limit on each comment remains in place and

the instances where Policies 903 and 922 have been applied each involved speech related to agenda

items. The Court finds that the risk of speakers going too far afield in a five-minute time period

appears minimal and is outweighed by the risk of free speech infringement.

° At the preliminary injunction hearing, Mr. Amuso opined that accusing a School Board member of a

financial crime was “obscene.” Nov. 8, 2021 H’rng Tr. at 100:14—25. While not specifically at issue in

this preliminary injunction motion, the Court reminds the District and its solicitors that the Supreme Court

has defined the term “obscene” in a limited manner. See Miller v. California, 413 U.S. 15, 24 (1973)

(defining obscene speech or materials as those “which, taken as a whole, appeal to the prurient interest in

sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have

serious literary, artistic, political, or scientific value”). As the Court reminded counsel during the hearing,

accusations of criminality can more likely trigger defamation laws rather than obscenity standards.

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Second, the District suggests that “it could also be argued that any such relief would be an

infringement of the District’s First Amendment rights to discuss school business only during these

meetings.” Doc. No. 44-1, at 11. It is unclear how this point “could be argued” because the District

provides no further analysis. The District does not explain how government speech rights could

be First Amendment rights. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009)

(“The Free Speech Clause restricts government regulation of private speech; it does not regulate

government speech.”). To the extent the District seeks to maintain a limited public forum, the

analysis above addresses the concern about irrelevant uses of the five-minute speaking periods.

Third, the District argues that “allowing such speech would undoubtedly lead to vioience,

etc., which does not occur now as a result of the limited application of Policies 903 and 922 by the

District.” Doc. No. 44-1, at 11. However, the District provides no evidence to support its

assessment that the requested relief would “undoubtedly” cause “violence, etc.” In fact, the Court

doubts it very much. The primary instances in which speakers became heated at the school board

meetings at issue here involved yelling by Board representatives and/or the application of Policy

903 to force speakers to leave the microphone. It is possible that the requested injunctive relief

could actually decrease the risk of violence at the meetings by preventing these verbal altercations

over the disputed invocations of the Policy. The plaintiffs also do not challenge the portion of

Policy 922 that requires notification of law enforcement if “any individual threatens harm or makes

inappropriate physical contact with another individual.” Doc. No. 4-9, at 1, Given that the

requested relief does not remove the prohibition of “obscene” comments, the “reasonable

decorum” requirement, or the requirement to notify law enforcement of threats, the District does

not present convincing evidence that the injunctive relief would meaningfully change the threat of

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violence from its current level.'!° The Court agrees that there can be reasonable restraint, and the

remaining portions of Policies 903 and 922 serve this purpose.'!

The District does not maintain that the address announcement requirement is necessary to

prevent harm and has, in fact, decided not to enforce it since June 2021. Therefore, the Court does

not view the requested injunction against enforcement of the address announcement requirement

as likely to cause the District any harm.

TV. Public Interest

Lastly, the District asserts the same concerns regarding “unfettered” use of the five-minute

periods and violence to argue that granting the public injunction would not promote the public

interest. Doc. No. 44-1, at 11. However, “the enforcement of an unconstitutional law vindicates

no public interest.” K.A. v. Pocono Mt. Sch. Dist,, 710 F.3d 99, 114 (3d Cir. 2013). Ifthe movant

demonstrates a likelihood of success on the merits, “the public interest leans even more toward

granting the injunction.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer

Pharms. Co., 290 F.3d 578, 597 (3d Cir. 2002).

Because the District has failed to demonstrate a likelihood of success on the merits, the

preliminary injunction will serve the public interest by protecting First Amendment free speech

rights. Am. Freedom Def. Initiative v. SEPTA, 92 F. Supp. 3d 314, 330 (E.D. Pa. 2015) (noting

that “many courts have held that there is a significant public interest in upholding First Amendment

'0 To the extent the District continues to maintain that Policy 922 is not really intended for School Board

meetings, this ruling does not prevent the District from adding the same language from Policy 922 to Policy

903 regarding notification of law enforcement when individuals threaten harm or make inappropriate

physical contact.

'l The plaintiffs alternatively propose that the Court “impose a limiting construction on the terms

‘irrelevant? and ‘disruptive’ to limit their application to speakers who are addressing matters wholly

unrelated to school board business or whose manner of speech—not viewpoint—is likely to cause public

disorder or interfere with others’ rights to speak.” Doc. No. 4-2, The Court finds this approach unnecessary

because the remaining policy requirements (the prohibition on “obscene” speech, the “reasonable decorum”

requirement, and the notification of law enforcement of threats or physical harm) can achieve this goal.

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principles”); Monroe v. Houston Indep. Sch. Dist., 419 F. Supp. 3d 1000, 1008-10 (S.D. Tex.

2019) (finding that a preliminary injunction against a similar school board policy prohibiting

“offensive or derogatory remarks” promoted the public interest).

V. Bond Requirement

Because the Court will grant the preliminary injunction, it is necessary to determine

whether a bond requirement should be set. Federal Rule of Civil Procedure 65(c) states that “[t]he

court may issue a preliminary injunction... only if the movant gives security in an amount that

the court considers proper to pay the costs and damages sustained by any party found to have been

wrongfully enjoined or restrained.” However, the Third Circuit Court of Appeals has recognized

that “an extremely narrow exception exists ‘when complying with the preliminary injunction raises

no risk of monetary loss to the defendant.’” Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412,

426 (3d Cir. 2010) (quoting Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 210 Gd

Cir. 1990)). “In noncommercial cases, the court should consider the possible loss to the enjoined

party together with the hardship that a bond requirement would impose on the applicant.” Temple

Univ. v. White, 941 F.2d 201, 219 Gd Cir, 1991) (internal quotation marks omitted). This

“exception involves a balance of the equities of the potential hardships that each party would suffer

as result of a preliminary injunction. Where the balance of these equities weighs overwhelmingly

in favor of the party seeking the injunction, a district court has the discretion to waive the Rule

65(c) bond requirement.” Eiliott v. Kiesewetter, 98 F.3d 47, 60 (3d Cir. 1996).

The plaintiffs argue that the Court should waive the Rule 65(c) bond requirement because

complying with the preliminary injunction raises no risk of monetary loss to the defendants and

the balance of the equities weighs in their favor. Doc. No. 4-2, at 18-19 (citing Zambelli Fireworks

Mfg. Co., 592 F.3d at 426), The District does not request a bond. There is no evidence of risk of

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monetary loss to the District from allowing speakers to complete their full five minutes and from

not enforcing the address announcement requirement. The preliminary injunction protects First

Amendment rights and vindicates the public interest. Balancing the equities in this case, the Court

finds that waiver of the Rule 65(c) security requirement is appropriate.

CONCLUSION

For the foregoing reasons, the Court grants the preliminary injunction and will enjoin the

District from enforcing the Challenged Policy Terms and the address announcement requirement

during the pendency of this litigation. An appropriate order follows.

BY THE COURT:

A POEL he C Leta Lhe

ENELECK/ PRATTER

UNITED STATES DISTRICT JUDGE

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