Moms For Liberty - Wilson County, TN v. Wilson County Board of Education

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MOMS FOR LIBERTY – WILSON )

COUNTY, TN, et al., )

) NO. 3:23-cv-00211

Plaintiffs, )

) JUDGE RICHARDSON

v. )

)

WILSON COUNTY BOARD OF )

EDUCATION, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiffs’ motion for preliminary injunction (Doc. No. 16,

“Motion”). Plaintiffs filed a memorandum in support of the preliminary injunction (Doc. No. 17).

Defendants filed a response (Doc. No. 21), to which Plaintiffs filed a reply (Doc. No. 22).

Defendants then filed a supplemental response (Doc. No. 26) to which Plaintiffs filed a

supplemental reply (Doc. No. 27).

BACKGROUND1

Plaintiff Moms for Liberty – Wilson County, TN (“Moms for Liberty”) is the Wilson

County Chapter of Moms for Liberty, a 501(c)(4) organization whose mission is to organize,

educate, and empower parents to defend their parental rights at all levels of government. (Doc. No.

1 The following facts, unless somehow qualified herein, are taken as true for purposes of the Motion because

they are either: (1) asserted and evidentially supported at least to some degree by one party and not rebutted

by the other side; (2) otherwise not in genuine dispute; (3) asserted and evidentially supported by one side

to such an extent, or in such a manner, that they are credited by this Court even if rebutted to some extent

by the other side; or (4) subject to judicial notice. Because there are no facts in dispute that are material to

the preliminary injunction sought, the Court may and will decide this Motion without an evidentiary

hearing. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 553 (6th Cir.

2007) (“[W]here material facts are not in dispute or where facts in dispute are not material to the preliminary

injunction sought, district courts generally need not hold an evidentiary hearing.”).

1 at ¶ 3). Defendant Wilson County Board of Education (“Board”) is a local government unit

created by the State of Tennessee charged with administering the public schools in Wilson County,

Tennessee. (Id. at ¶ 6). Defendant Kimberly McGee (“McGee”) is being sued in her official

capacity as Vice-Chairman of the Board. (Id. at ¶ 8). Each of the other named defendants is sued

in his or her official capacity as a Board member, and one of them is sued also in her individual

capacity.2 (Id. at ¶¶ 7, 9-13).

The Board holds meetings that are open to the public. (Id. at ¶ 15). Rules about citizen

participation in meetings are detailed in Wilson County Schools Policy Manual 1.404 (“Policy

1.404”), which provides three ways citizens can speak at the board meetings. (Id. at ¶ 16). First,

an individual can ask for time on the meeting agenda 10 days before the meeting. (Id. at ¶ 17).

Second, individuals can speak about items on the agenda. (Id. at ¶ 18). Third, an individual can

ask any board member for permission to speak about an issue not on the agenda. (Id. at ¶ 19). As

to the third method, a board member can grant an individual’s request to speak about an issue not

on the agenda only if he or she determines that doing so is “in the public interest.” (Id.). Regardless

of which method is used, Policy 1.404 prescribes the rule (“address-disclosure requirement”) that

any speaking individual must publicly announce his or her address before speaking.3 (Id. at 21).

At the beginning of every meeting, the Chairman also informs speakers of additional rules,

i.e., rules not found in Policy 1.404. (Id. at 20). In addition to verbally (orally) prohibiting

2 The Court uses the collective term “Defendants" to refer to the Board, McGee, and all remaining

defendants (namely Jamie Farough, individually and in her official capacity as a member of the Board;

Melissa Lynn, in her official capacity as a member of the Board; Beth Meyers, in her official capacity as a

member of the Board; Joseph Padilla, in his official capacity as a member of the Board; Carrie Pfeiffer, in

her official capacity as a member of the Board; and, Larry Tomlinson, in his official capacity as a member

of the Board).

3 As discussed below, Policy 1.404 has since been modified to exclude a requirement that any speaking

individual publicly announce their address before speaking.

“disruptive” behavior, the Board has a verbal rule (“abusive-comment prohibition”) that forbids

comments that are “abusive to an individual board member, the board as a whole, or the director

of schools or any employee of the school system.”4 (Id. at ¶ 24).

Plaintiff Amanda Dunagan-Price (“Dunagan-Price”) resides in Wilson County, Tennessee.

(Id. at ¶ 5). She is the Chair of Moms for Liberty and the mother of several school-aged children

who currently attend schools operated by Wilson County Schools. (Id.). Dunagan-Price felt

dissuaded from speaking by the abusive-comment prohibition and the rule requiring her to disclose

her address. (Id. at ¶¶ 36-37). Plaintiff Robin Lemons (“Lemons”),5 the Secretary of Moms for

Liberty, also resides in Wilson County, Tennessee and has a school-aged child who previously

attended an elementary school operated by Wilson County Schools. (Id. at ¶ 4). She attempted to

speak at a Wilson County school board meeting to “complain that school officials ignored and

mishandled an allegation of sexual misconduct involving her fourth-grade daughter.” (Id. at 2).

Lemons crafted her planned remarks in light of the abusive-comment prohibition but was

prevented from speaking on the grounds that she did not give her address. (Id. at ¶¶ 48-52). Lemons

continues to be dissuaded from speaking by the address-disclosure requirement and the abusive-

comment prohibition. (Id. at ¶¶ 54-55).

Other members of Moms for Liberty are also dissuaded by the address-disclosure

requirement and the abusive-comment prohibition. (Id. at ¶ 57). In their Motion, Plaintiffs request

an order prohibiting Defendants “from enforcing the Board’s policies (1) requiring [per the

address-disclosure requirement] that individuals speaking at Board meetings disclose their

address, (2) prohibiting [per the abusive-comment prohibition] speakers from making allegedly

4 As discussed below, the Board has since removed from its script all language stating that “disruptive” or

“abusive” comments are prohibited.

5 Moms for Liberty, Dunagan-Price, and Lemons are referred to collectively herein as “Plaintiffs.”

‘abusive’ comments, and (3) requiring that individuals prove that their comments are ‘in the public

interest’ before speaking.” (Doc. No. 17 at 29).

LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy which should be granted only if the

movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet

v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2003). “The party seeking a

preliminary injunction bears a burden of justifying such relief, including showing irreparable harm

and likelihood of success.” Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 600 (6th Cir. 2014)

(quoting Michigan Cath. Conf. & Cath. Fam. Servs. v. Burwell, 755 F.3d 372, 382 (6th Cir. 2014)).

Those seeking a preliminary injunction must meet four requirements.6 They must show a

likelihood of success on the merits; irreparable harm in the absence of the injunction; that the

balance of equities favors them; and that public interest favors an injunction. Winter v. Nat. Res.

Def. Council, 555 U.S. 7, 20 (2008); Sisters for Life, Inc. v. Louisville-Jefferson County, 56 F.4th

400, 403 (6th Cir. 2022).

A plaintiff seeking a preliminary injunction may not merely rely on unsupported

allegations, but rather must come forward with more than “scant evidence” to substantiate their

allegations. See, e.g., Libertarian Party of Ohio v. Husted, 751 F.3d 403, 417 (6th Cir. 2014);

Cameron v. Bouchard, 815 F. App’x 978, 986 (6th Cir. 2020) (vacating preliminary injunction

when plaintiffs made no evidentiary showing on some elements of their claim, but instead made

6 Some published Sixth Circuit cases stand unmistakably for the proposition that these four items are factors

rather than requirements, except that irreparable harm is a requirement (and, if it exists and thus keeps the

possibility of a preliminary injunction alive, thereafter becomes a factor to be balanced along with the other

three factors). See, e.g., D.T. v. Sumner Cnty. Sch., 942 F.3d 324, 326–27 (6th Cir. 2019). Alas, this case

law is inconsistent with more recent Sixth Circuit case law and with Supreme Court case law (including the

two cases cited above) describing these as all being requirements. The Court believes that it is constrained

the follow the latter line of cases.

mere allegations regarding the treatment of Covid-19 in prisons); McNeilly v. Land, 684 F.3d 611,

614 (6th Cir. 2012) (upholding denial of preliminary injunction when plaintiff made only a “small

showing” of evidence); United States v. Certain Land Situated in City of Detroit, No. 95-1118,

1996 WL 26915, *1 n.1 (6th Cir. Jan. 23, 1996) (noting a lack of evidence to support speculative

allegations).7

In conducting the preliminary-injunction analysis, the Court may rely on the entire record,

including affidavits and hearsay materials that would not be admissible evidence to support a

permanent injunction, if the evidence is appropriate given the character and objectives of the

injunctive proceeding. Sterling v. Deutsche Bank Nat’l Tr. Co., 368 F. Supp. 3d 723, 725 (S.D.N.Y.

2019); Express Franchise Servs., L.P. v. Impact Outsourcing Sols., Inc., 244 F. Supp. 3d 1368,

1379 (N.D. Ga. 2017); Action NC v. Strach, 216 F. Supp. 3d 597, 629 (M.D.N.C. 2016) (explaining

that district courts may look to, and indeed in appropriate circumstances rely on, hearsay or other

inadmissible evidence when deciding whether a preliminary injunction is warranted). See also

Ohio State Conf. of N.A.A.C.P. v. Husted, 768 F.3d 524, 535 (6th Cir. 2014), vacated on other

grounds, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014).

ANALYSIS

I. Public-Interest Provision

Plaintiffs challenge, on First Amendment grounds, the portion of Policy 1.404 that states

that “[t]he Chairman or individual Board Member may recognize individuals not on the agenda

for remarks to the Board if he/she determines that such is in the public interest.” (Doc. No. 1 at ¶

19). (The Court herein refers to this specific portion of Policy 1.404 as the “public-interest

7 The Court keeps this principle in mind as to disputed factual assertions made by Plaintiff. The

Court is aware, however, that many of the facts underlying the instant Motion are not in dispute.

provision.”). As discussed further below, the Court construes the public-interest provision to allow

individuals to speak (make remarks) if a board member determines that the remarks would be

regarding a matter of public interest (as opposed to the remarks advocating a particular viewpoint

that the board member finds “in the public interest” as, for example, because the board member

happens to agree with the viewpoint). In this construction, what makes it “in the public interest”

to allow an individual to speak is that the speaking would concern a matter of public interest.

“‘Congress shall make no law,’ the First Amendment says, ‘abridging the freedom of

speech.’” Sisters for Life, Inc. v. Louisville-Jefferson Cnty., 56 F.4th 400, 403 (6th Cir. 2022)

(quoting Manhattan Cmty. Access Corp. v. Halleck, U.S., 139 S. Ct. 1921, 1928 (2019)). “The

Fourteenth Amendment limits state and local governments in the same manner.” Id. “The Free

Speech Clause limits the government’s power to regulate speech on public property.” Am.

Freedom Def. Initiative v. Suburban Mobility Auth., 978 F.3d 481, 485 (6th Cir. 2020). Those

limits “var[y] depending on the forum where the speech occurs.” Ison v. Madison Local Sch. Dist.

Bd. of Educ., 3 F.4th 887, 893 (6th Cir. 2021). A limited-public forum exists where the government

opens its property “for certain groups or for the discussion of certain topics.” Id. (quoting

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). The public-comment

period of a school board meeting is a limited-public forum. See Lowery v. Jefferson Cnty. Bd. of

Educ., 586 F.3d 427, 432 (6th Cir. 2009); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 45, n.7 (1983).

“In a limited public forum, the government may ‘regulate features of speech unrelated to

its content’ through ‘time, place, or manner’ restrictions.” Ison, 3 F.4th at 893 (citing McCullen v.

Coakley, 573 U.S. 464, 477 (2014)). The government may also impose content-based restrictions,

such as those reserving the forum for certain groups or for the discussion of certain topics, so long

as they “are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Id.

That means the government “must be able to articulate some sensible basis” for its rule. Minn.

Voters All. v. Mansky, 138 S. Ct. 1876, 1888 (2018). And regardless of its rationale, the

government cannot “disfavor[] certain points of view.” Ison, 3 F.4th at 893 (quotation omitted).

The Court assumes arguendo8 that the public-interest provision is a content-based

limitation in that it regulates speech based on “the topic discussed or the idea or message

expressed.” See Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). Accordingly, the Court

must determine whether the public-interest provision is (1) “reasonable in light of the purpose

served by the forum” and (2) viewpoint neutral. Ison, 3 F.4th at 893. Plaintiffs also argue that the

public-interest provision violates the First Amendment because it imposes “an impermissible prior

restraint.” (Doc. No. 17 at 10). As discussed below, Plaintiffs are not likely to succeed on the

merits with respect to the public-interest provision—which applies in a what is a limited public

8 In Youkhanna v. City of Sterling Heights, the Sixth Circuit treated a requirement that public comments

made at a city council meeting be “relevant” to the present agenda item as a content-based restriction. 934

F.3d 508, 518 (6th Cir. 2019). Accordingly, the Court finds that the public-interest provision, which is

similar in that it requires that comments be in the “public interest,” (which the Court takes to mean “relevant

to,” or “of public concern”) would also be content-based. However, in a different case, Lowery v. Jefferson

Cnty. Bd. of Educ., the Sixth Circuit treated a school board policy that prohibited comments that were

“frivolous, repetitive, [or] harassing in nature” as content-neutral. 586 F.3d 427, 433 (6th Cir. 2009).

According to the Sixth Circuit in Lowery, such a restriction was “‘justifi[able] without reference to the

content’ of the speech, making it content-neutral on its face.” Id. (citing Clark v. Cmty. for Creative Non–

Violence, 468 U.S. 288, 293 (1984)). The Sixth Circuit went on to state that the justifications for the policy

in Lowery (namely, “allow[ing] everyone a fair and adequate opportunity to be heard”; “assur[ing] that the

regular agenda of the Board is completed”; and “recogniz[ing] the voluntary nature of the Board['s] time

and us[ing] that time efficiently,”) have “nothing to do with the subject of an individual's proposed speech

and everything to do with conducting orderly, productive meetings.” Id.

Here, a strong argument could be made that the public-interest provision is content-neutral for the same

reasons that the Lowery court found the policy in that case to be content-neutral. However, since the Court

concludes here that the public-interest provision is not unconstitutional even under the content-based

standard (which is more favorable to Plaintiffs), the Court need not assess its constitutionality if it were

instead to be categorized as content-neutral.

forum, as noted above—because it is reasonable, does not discriminate based on viewpoint, and is

not a prior restraint.

A. The Public-Interest Provision Is Reasonable

The public-interest provision is certainly reasonable in light of the purposes served by the

forum. In Youkhanna, regarding a prior restraint requiring speech at a city council meeting to be

relevant to the agenda, the Sixth Circuit court wrote “we can think of no content-based restriction

more reasonable than asking that content be relevant.” 934 F.3d at 519 (discussing a restriction

that included “Speakers will be required to stay on point. Your comments during this agenda item

must be related to this agenda item.”). Similarly, the public-interest provision restricts comments

to topics that concern the public at large, which are the only relevant purposes served by the forum

at issue. The public-interest provision furthers an important government interest of maintaining

structured, orderly Board meetings and avoiding waste of time and resources through lengthy

discussions about personal or otherwise irrelevant topics. As the Sixth Circuit has previously

stated, “[u]nstructured, chaotic school board meetings not only would be inefficient but also could

deny other citizens the chance to make their voices heard. That is why public bodies may confine

their meetings to specified subject matter.” Lowery, 586 F.3d at 433 (internal citations omitted).

It becomes even more apparent that the public-interest provision is reasonable when it is

considered in light of the alternative avenues available for individuals to speak at a Board meeting.

As the Court previously outlined, there are three methods by which an individual may appear at a

Board meeting. (Doc. No. 1 at ¶ 16). First, an individual may be placed on the agenda by

submitting, to the office of the Director of Schools ten business days before the scheduled Board

meeting, a written request with descriptive materials about the proposed topic. (Id. at ¶ 17).

Second, individuals can ask to speak about items already on the agenda by signing up or asking a

board member before the meeting starts. (Id. at ¶ 18). And third, any board member may recognize

individuals not on the agenda to speak if he or she determines that the individual’s remarks are in

the public interest. (Id. at ¶ 19). The public-interest provision applies only to the third method,

which already offers individuals the freedom to make remarks outside of the planned agenda.

Accordingly, it is reasonable for the Board to maintain some discretion to limit speech made by

individuals wishing to discuss non-agenda items via this third method.

C. The Public-Interest Provision Is Viewpoint-Neutral

The public-interest provision is also viewpoint-neutral. “[T]he test for viewpoint

discrimination is whether—within the relevant subject category—the government has singled out

a subset of messages for disfavor based on the views expressed.” Matal v. Tam, 582 U.S. 218, 248

(2017) (Kennedy, J., concurring) (citing Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473

U.S. 788, 806, (1985)). “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.”

Rosenberger, 515 U.S. at 829. The public-interest provision does not suppress speech based on the

Board’s disfavor of particular views expressed by that speech. Rather, the public-interest provision

provides a screening mechanism by which the Board may determine whether certain speech

(namely, speech about a topic that does not appear on the agenda for the present Board meeting)

is relevant to the purpose(s) of the meeting (meaning relevant to a matter, albeit not necessarily

any matter,9 concerning the public at large).

Put differently, the public-interest provision does not restrict individuals from sharing their

views on a particular issue. Rather it limits the scope of topics that may be discussed at the current

Board meeting (regardless of what views would be conveyed during a discussion on those topics)

9 After all, the public matters to be addressed at a school board meeting naturally should be related in some

way to public schools and not to issues such as, for example, U.S. foreign policy.

to those that are relevant to the public at large. So long as the speech in question is relevant to the

general public, the public-interest provision does not discriminate based on views expressed in that

speech, whatever those views happen to be. For example, an individual wishing to comment on a

school’s current standardized testing procedures (a topic that would conceivably fall within the

“public interest”) would be just as free to disparage those testing procedures as she would to

endorse them. On the other hand, a father of a student seeking to discuss his child’s individual

performance on a school’s standardized tests (a topic that would likely fall outside the “public

interest”) would not be allowed to speak at all on that topic, regardless of whether his comments

indicate support or disdain for the school’s standardized testing system.

Despite the above, Plaintiffs argue that the public-interest provision discriminates against

speech based on viewpoint because (according to Plaintiffs) “[t]he general public’s interest is a

viewpoint,” and “what the general public considers interesting or relevant might not match what a

particular speaker considers interesting or relevant.” (Doc. No. 22 at 7) (internal citations omitted).

Based on this reasoning, Plaintiffs would presumably argue that prohibiting the father from

speaking in the latter scenario of the example above constitutes viewpoint discrimination because

the father may view his son’s test scores as being a matter of public interest, even though the Board

or the public may not. But this broad understanding of viewpoint discrimination is misguided. The

Board’s (hypothetical) decision to prohibit the father from speaking in the above example would

not be an attempt by the Board to “single[] out a subset of messages for disfavor based on the

views expressed.” Matal, 582 U.S. at 248 (Kennedy, J., concurring). Nor would the Board’s goal

be to “to suppress unpopular ideas or information or manipulate the public debate through coercion

rather than persuasion.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994). Rather, the

Board’s objectives in enforcing the public-interest provision would (presumably) be to confine the

topics of discussion that do not appear on the agenda to issues that concern the public at large.10

This “has nothing to do with the [viewpoint] of an individual's proposed speech and everything to

do with conducting orderly, productive meetings.” Lowery, 586 F.3d at 433.11 Accordingly, the

public-interest provision does not discriminate based on viewpoint.

Concededly, the public-interest provision is not artfully drafted, and it is not implausibly

construed to give board members the prerogative to dub particular proposed remarks “in [or not

in] the public interest” based on whether the board member agrees with the viewpoint reflected in

those remarks. But as the Court has expressed above, a plausible reading is that an individual’s

remarks must be about something of public interest. The Court finds such a construction very

plausible, not least because it contemplates a decision-making process for determining what is in

the public interest—a simple determination of whether the topic concerns a matter of public rather

than merely private interest—that is far more practical and time-efficient than the process Plaintiffs

envision, whereby the board member (on the spot, at the meeting itself) would get into the weeds

of what the speaker would say and whether the speaker’s particular viewpoint would please the

10 The Court reiterates that Policy 1.404 offers two other avenues by which individuals who wish to speak

at a meeting may do so, neither of which are subject to the public-interest provision. These methods of

circumventing the public-interest provision suggest to the Court that even if (contrary to the Court’s

conclusion herein) Plaintiffs were likely to succeed on the merits of this claim, Plaintiffs are not likely to

suffer imminent, irreparable harm in the absence of a preliminary injunction prohibiting Defendants from

enforcing the public-interest provision. Plaintiffs may still make their remarks via one of the two alternative

methods offered by Policy 1.404 as noted above.

11 The Court perceives that what Plaintiffs are doing here amounts to a form of bootstrapping. The argument

seems to be that whenever a decision is made as to whether criteria (even viewpoint-neutral criteria) are

satisfied for prohibiting speech on a particular topic, the decision itself represents a particular viewpoint (as

to the satisfaction of those criteria). Under this argument, a policy allowing officials running a public

meeting to apply viewpoint-neutral criteria for screening topics amounts to a policy that is not viewpoint-

neutral. The Court rejects this notion. A content-neutral policy restricting speech based on particular criteria

does not somehow become (or generate) a viewpoint-discriminatory policy merely because an official

tasked with applying the policy must express a viewpoint as to whether those criteria are applicable in a

particular case.

board member to the point where the board member would dub the speaking to be “in the public

interest.”

And if there are two plausible readings, one constitutional and the other not, courts

generally adopt the reading that does not render the policy unconstitutional. United States v.

Palomar-Santiago, 593 U.S. 321, 328-29 (2021) (internal citations omitted) (“Courts should

indeed construe statutes to avoid not only the conclusion that [they are] unconstitutional, but also

grave doubts upon that score.”). Moreover, although the public-interest provision turns on whether

the Chairman or an individual Board Member determines that certain speech is in the “public

interest,” the Court does not have to—and does not—read it as giving board members license to

ignore objective considerations in deciding what is and is not in the public interest and to decide

based on the board member’s subjective assessment of the validity of the potential speaker’s

viewpoint.

In sum, the Court concludes that the public-interest provision is reasonable and does not

discriminate based on viewpoint in a limited public forum.

C. The Public-Interest Provision is Not a Prior Restraint

Plaintiffs also argue that the public-interest provision violates the First Amendment

because it imposes “an impermissible prior restraint.” (Doc. No. 17 at 10). “In its simple, most

blatant form, a prior restraint is a law which requires submission of speech to an official who may

grant or deny permission to utter or publish it based upon its contents.” Alexander v. United States,

509 U.S. 544, 566 (1993) (Kennedy, J., dissenting). “Any system of prior restraint, . . . ‘comes to

this Court bearing a heavy presumption against its constitutional validity.’” Se. Promotions, Ltd.

v. Conrad, 420 U.S. 546, 558 (1975) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963)).

Despite Plaintiffs’ contentions, the Court here finds that the public-interest provision is not

a prior restraint on speech. In Lowery, at issue was a school board policy that allowed citizens to

apply and be approved to speak for five minutes at board meetings. Id. at 433. The policy further

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,” and it gave the

chairman 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.

Moreover, the policy gave the director and chairman the authority to decide whether to allow a

particular individual to speak and the board the right to vote at the meeting to allow someone who

has not gone through the screening process to speak at the meeting. Id. The plaintiffs called the

defendants prior to a board meeting to apply for speaking time about a particular topic. Id. at 431.

The defendants granted that request, and at the next board meeting, the plaintiffs’ attorney spoke

on the plaintiffs’ behalf, criticizing various school officials. Id. About a month later, the plaintiffs

called again, requesting speaking time on the same topic at the following board meeting. Id. This

time, the defendants denied the plaintiff’s request. Id. The plaintiffs then filed a lawsuit claiming

that the school board violated their First Amendment rights by refusing to allow them to make a

second appearance before the board. Id. The plaintiffs argued that denying their request ahead of

time, rather than waiting to regulate the speech after hearing it, imposed a “prior restraint” on the

speaker, subjecting the denial to more rigorous scrutiny and requiring more procedural safeguards.

Id. at 433. The Sixth Circuit court rejected this argument, stating, “[i]t is true that the defendants

‘restrained’ the plaintiffs from speaking ‘prior’ to the meeting, but that does not make their actions

a ‘prior restraint’ in a First Amendment sense.” Id.

The Lowery court did not expound upon it’s reasoning as to why the rule at issue did not

constitute a “prior restraint.” Perhaps it was because “[i]n practice, most prior restraints involve

either an administrative rule requiring some form of license or permit before one may engage in

expression, or a judicial order directing an individual not to engage in expression, on pain of

contempt,” none of which were required by the rule at issue in Lowery. Griffin v. Bryant, 30 F.

Supp. 3d 1139, 1177 (D.N.M. 2014) (citing Rodney Smolla, Smolla and Nimmer on Freedom of

Speech § 15:1 (2014)). Whatever the reason for the Lowery court’s conclusion that the rule was

not a prior restraint, the Court finds Lowery applicable here, given that its facts closely resemble

those in this case. Policy 1.404 in this case allows an individual to ask any board member for

permission to speak about a topic that is not on the agenda. Per the public-interest provision, a

board member may deny that request if he or she determines that it is not “in the public interest,”

just as the defendants in Lowery could deny (and did so deny) an individual’s request to speak

about a topic that the defendants determined to be “frivolous, repetitive, []or harassing in nature.”

Id. at 433. Based on these similarities, the Court finds that it must apply Lowery and conclude that

the public-interest provision does not constitute a prior restraint.

Because the public-interest provision is reasonable and does not discriminate based on

viewpoint in a limited public forum, and because the public-interest provision is not a prior

restraint, Plaintiffs are not likely to succeed on the merits and a preliminary injunction is not

warranted regarding this rule. Accordingly, the Motion is denied with respect to the public-interest

provision.

II. Address-Disclosure Requirement and Restriction Against “Abusive” Comments

Plaintiffs cannot show that they are likely to suffer imminent and irreparable harm in the

absence of injunctive relief from the address-disclosure requirement and abusive-comment

prohibition.12 Plaintiffs make several arguments about why the address-disclosure requirement and

abusive-comment prohibition imposed by Defendants violates the First Amendment. (Doc. No. 17

at 17-21). Instead of responding to the merits of these arguments, Defendants assert that the issue

is moot because Defendants have removed the address-disclosure requirement and “abusive” or

“disruptive” comment restrictions from (1) the script that the Chairman reads aloud before the

public comment portion of Board meetings (Doc. No. 21 at 4); (2) the sign-up form that individuals

that wish to be added to the agenda for a Board’s meeting to publicly address the Board are required

to complete and submit to the Board (id. at 5); and (3) Board Policy 1.404 (Doc. No. 26 at 3).

Plaintiffs argue in response that “voluntary cessation does not moot a case unless it is absolutely

clear that the allegedly wrongful behavior could not reasonably be expected to recur.” West

Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (cleaned up). Since (according to Plaintiffs)

Defendants have not made this showing, their changes should not moot Plaintiffs’ case with respect

to the address-disclosure requirement and abusive-comment prohibition.

As Plaintiffs have acknowledged, Defendants have not moved to dismiss any of Plaintiffs’

claims. (Doc. No. 22 at 4, n.1). “Instead, [Defendants] raised mootness only in response to

[Plaintiffs’] motion for a preliminary injunction.” (Id.). Accordingly, the Court need not assess at

this time whether Plaintiffs’ claims are moot in light of Defendants’ voluntary cessation.

Defendants’ voluntary cessation is pertinent, however, to the Court’s ruling on the instant Motion

12 Defendants assert that they have removed, from the Board’s pre-meeting script and sign-up form,

language forbidding both “abusive” and “disruptive,” comments. (Doc. Nos. 21 at 5-6). Defendants assert

also that they have removed language forbidding “disruptive” comments from Policy 1.404 (as Policy 1.404

never contained language prohibiting “abusive” comments). (Doc. No. 26 at 3). To be clear, the Complaint

requests that the Court enjoin Defendants from prohibiting speakers from making “abusive” comments

only. (Doc. No. 1 at 29). Accordingly, the Court need only address the restrictions against “abusive”

comments for purposes of the Motion, but notes that to the extent Plaintiffs lump the “abusive” and

“disruptive” restrictions together, the Court’s reasoning applies equally to Defendants’ prior restrictions

against “disruptive” comments.

because “[c]lessation of the allegedly illegal conduct, though not rendering a claim moot,

nevertheless may affect the ability to obtain injunctive relief, as by impacting the ability to show

substantial and irreparable injury.” Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 748 (7th Cir.

1999) (citing U.S. v. W.T. Grant, 345 U.S. 629, 632-33 (1953)). See also Speech First, Inc. v.

Schlissel, 939 F.3d 756, 770 (6th Cir. 2019) (finding the district court was incorrect in stating, in

evaluating likelihood of success on the merits, that the case was moot due to government’s

cessation but leaving intact the district court’s finding of no irreparable injury because of such

cessation).

Here, the Court concludes that Plaintiffs are not likely to suffer imminent irreparable harm

from the address-disclosure requirement or abusive/disruptive-comment restriction that

Defendants have removed from their policies, given that those requirements are no longer included

in any of the three documents described above (i.e., the sign-up form, pre-meeting script, or Policy

1.404). Accordingly, the Motion is denied with respect to the address-disclosure requirement and

the abusive-comment prohibition.

CONCLUSION

For the reasons set forth herein, the Motion (Doc. No. 16) is hereby DENIED.

IT IS SO ORDERED.

Chi Richardson

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE