Oswald v. Lakota Local School Board

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRIAN OSWALD, : Case No. 1:21-cv-681

:

Plaintiff, : Judge Jeffery P. Hopkins

:

vs. :

:

LAKOTA LOCAL SCHOOL BOARD,

:

:

Defendant.

:

OPINION AND ORDER

Plaintiff Brian Oswald (“Mr. Oswald”) is not afraid to speak his mind. On at least

three different occasions Mr. Oswald has chosen to speak at the regularly scheduled meetings

of the Defendant Lakota Local School Board (the “Board”). At the Board’s meeting on June

14, 2021, he spoke against critical race theory. At the Board’s meeting on August 5, 2021, he

spoke against COVID-19 mask mandates in schools. During both meetings Mr. Oswald spoke

in opposition to one or more Board policies, and he did so without interruption because he

directed his remarks at the Board’s “presiding officer” in compliance with Board Policy No.

0169.1 (the “Public Participation Policy” or the “Policy”).

What brings Mr. Oswald before this Court is what occurred at the third Board meeting

that he attended. On September 27, 2021, Mr. Oswald was intent on again speaking against

the Board’s mask requirement as he had done without interruption at the August Board

meeting. This time, instead of addressing the “presiding officer,” he repeatedly attempted to

speak directly with “parents” seated in the audience in violation of the Public Participation

Policy. After warning Mr. Oswald of his repeated violations of the Policy, the presiding officer

of the Board, Kelley Casper (“Ms. Casper”), terminated Mr. Oswald’s speech.

One month later, on October 25, 2021, Mr. Oswald filed the present lawsuit against

the Board claiming his right to expression under the First Amendment had been violated.

Oswald brings both a facial and as-applied First Amendment challenge to the Public

Participation Policy. The primary focus of the Complaint is based upon Ms. Casper’s

termination of his speech at the September 27, 2021, Board meeting. See generally, Doc. 1. In

response to the Complaint, the Board filed a Motion for Summary Judgment (the “Motion

for Summary Judgment” or the “Motion”). Doc. 35.

As explained below, the Court GRANTS Defendant Lakota Local School Board’s

Motion for Summary Judgment (Doc. 35) and DISMISSES Plaintiff Brian Oswald’s

Complaint (Doc. 1).

I. BACKGROUND

In compliance with this Court’s Standing Order Governing Civil Cases, the Board

attached a document entitled “Proposed Undisputed Facts” (“PUF”) (Doc. 35-1) to its

Motion. See Standing Order Governing Civil Cases (II)(F)(6)(b). Mr. Oswald failed to file a

response to the Board’s PUF (as required by the Standing Order), so the Court draws the

factual background for this opinion largely from the Board’s PUF. Id. (requiring every brief

in opposition to summary judgment to include a document entitled “Response to Proposed

Undisputed Facts”).

A. Public Comment at Board Meetings Is Governed by the Public Participation

Policy.

The Board, as the legislative body for the Lakota Local School District, allows

members of the public to comment on educational issues at its periodic meetings. PUF, at

¶¶ 1–2; Doc. 23-2, PageID 349. All public comments at meetings of the Board are governed

by Policy No. 0169.1, or the Public Participation Policy. PUF, at ¶¶ 1–2; Doc. 23-2, PageID

456.

The Public Participation Policy prescribes rules to “permit the fair and orderly

expression of [public] comment.” Doc. 23-2, PageID 456. According to the Policy, these rules

are to be administered by the “presiding officer of each Board meeting” when public comment

occurs. Id. As part of her responsibilities, the presiding officer ensures that all presenters abide

by rules including those that require them to:

• “[R]egister their intent to participate . . . upon their arrival at the meeting”;

• Limit their statement to three minutes unless extended by the presiding officer;

• Speak only once on the same topic; and

• Direct “[a]ll statements . . . to the presiding officer.”

Id. The Policy permits the presiding officer to “interrupt, warn, or terminate a participant’s

statement when the statement is too lengthy, personally directed, abusive, obscene, or

irrelevant.” Id. at PageID 457. It also permits the presiding officer to “request any individual

leave the meeting when that person does not observe reasonable decorum or is disruptive to

the conduct of the meeting,” and “request the assistance of law enforcement in the removal

of a disorderly person when that person’s conduct interferes with the orderly progress of the

meeting.” Id. The provisions of the Public Participation Policy involving the presiding officer

are central to the case sub judice.

B. Mr. Oswald Speaks Against Board Policies at the June and August Meetings

of the Board.

Mr. Oswald is a resident of Butler County, Ohio, and in recent years has taken a strong

interest in certain policies promulgated by the Board. Doc. 23, PageID 309–10, 331. This

interest resulted in his participation during the public comment period of meetings held by

the Board. PUF, at ¶ 1; Doc. 23, PageID 326.

Oswald first spoke to the Board at the June 14, 2021 Board meeting (the “June

Meeting”). PUF, at ¶ 5; Doc. 23-2, PageID 456. During his allotted three minutes, Mr.

Oswald spoke against Lakota School District’s diversity, equity, and inclusion committee and

the Board’s alleged promotion of “critical race theory.” PUF, at ¶ 5; Doc. 23-4, PageID 462–

64. As required under the Public Participation Policy, Mr. Oswald directed his speech to the

presiding officer and was not interrupted while expressing his views at the June Meeting.

PUF, at ¶¶ 5, 20; Doc. 23, PageID 364–65; Doc. 23-4, PageID 462–64; Doc. 34, PageID 692.

At the Board meeting on August 5, 2021 (the “August Meeting”), Mr. Oswald again

registered to speak. PUF, at ¶ 6; Doc. 23, PageID 366–67; Doc. 23-5, PageID 468–70. During

his allotted three minutes, Mr. Oswald spoke against the Board’s imposition of a district-wide

mask mandate. PUF, at ¶ 6; Doc. 23-5, PageID 468–70. As before, Mr. Oswald directed his

speech to the presiding officer and was not interrupted while expressing his views at the

August Meeting. PUF, at ¶¶ 6, 20; Doc. 23, PageID 366–67; Doc. 23-5, PageID 468–70; Doc.

34, PageID 692.

C. The Presiding Officer Terminates Mr. Oswald’s Speech After He Refuses to

Direct His Speech to the Presiding Officer at the September Meeting.

Mr. Oswald also registered to speak at the September 27, 2021, meeting of the Board

(the “September Meeting”). PUF, at ¶ 8; Doc. 23, PageID 369. Ms. Casper was the presiding

officer of that meeting. PUF, at ¶ 8; Doc. 24, PageID 525. Instead of addressing the presiding

officer, however, like he had done at the June and August Meetings, Mr. Oswald began his

speech by declaring that he was going to speak directly to the parents in the audience. PUF,

at ¶ 9; Doc. 23-7, PageID 475; Doc. 24, PageID 522. He then turned away from the presiding

officer to face the parents and audience members and began his remarks. Id. Thereafter, Ms.

Casper interrupted Mr. Oswald and reminded him that he was required to address the

presiding officer of the Board. PUF, at ¶ 9; Doc. 23-7, PageID 475. Mr. Oswald ignored Ms.

Casper’s warnings to redirect his remarks to the presiding officer—six times in total—and

continued to address the parents. PUF, at ¶¶ 9–13; Doc. 23-7, PageID 475–77.

After informing Mr. Oswald that the Public Participation Policy requires him to

address the presiding officer of the Board three more times, Ms. Casper requested that the law

enforcement officer in the room remove Mr. Oswald. PUF, at ¶¶ 9–13; Doc. 23-7, PageID

475–77. Ms. Casper stated that Mr. Oswald “forfeited [his] time because [he] did not follow”

the requirement that he only address the presiding officer. Doc. 23-7, PageID 476. Mr.

Oswald eventually left the podium on his own volition. Doc. 23, PageID 334.

D. Mr. Oswald Files This Lawsuit.

A month after this encounter at the September Meeting, Mr. Oswald filed suit against

the Board seeking monetary and injunctive relief. See Doc. 1. In the Complaint, Mr. Oswald

alleges that the Public Participation Policy, both facially and as applied to him, restricts speech

in violation of the First Amendment of the United States Constitution. Id. The Board has

since filed its Motion for Summary Judgment seeking to have those claims dismissed. Doc.

35.

II. STANDARD OF REVIEW

“The ‘party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions’ of the

record which demonstrate ‘the absence of a genuine issue of material fact.’” Rudolph v. Allstate

Ins. Co., No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

But the non-moving party cannot defeat summary judgment merely by pointing to any

factual dispute. Indeed, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of Troy,

974 F.3d 690, 697 (6th Cir. 2020) (bracket and emphases omitted) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986)). In other words, the dispute must be “genuine” (i.e.,

supported by evidence) and go to a “material fact” (i.e., a fact that could matter to the

outcome).

After reviewing the evidence in the record and presented in the only PUF submitted

(the one by the Board), the Court must determine whether there is some “sufficient

disagreement” that necessitates submitting the matter to a jury. Moore v. Philip Morris Cos.,

Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–52). In making that

determination, though, the Court must view the evidence in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

court must afford all reasonable inferences, and construe the evidence in the light most

favorable to the nonmoving party.”).

III. LAW AND ANALYSIS

Mr. Oswald asserts two First Amendment challenges. First, he argues that the

language of the Public Participation Policy, which allows the presiding officer to restrict

statements that are “personally directed, abusive, obscene, or irrelevant,” is unconstitutional on its

face because it violates the First Amendment. Doc. 36, PageID 735 (emphasis in original).1

Second, he contends that the Public Participation Policy, as applied to him in this case,

violates the First Amendment because the Board weaponized the Policy’s “presiding officer

provision”—or the requirement that speakers address the “presiding officer”—to obstruct his

criticism of the mask-mandate policy. Id. at 733–34.

In return, the Board argues that the Court need not reach the merits of any of Mr.

Oswald’s arguments because he does not have standing to bring any First Amendment claims.

Doc. 35, PageID 710–12. According to the Board, even if Mr. Oswald does have standing,

his facial challenge is moot because the language of the Public Participation Policy Mr.

Oswald deemed offensive has been revised. Id. at PageID 712. Likewise, the Board contends

that Mr. Oswald’s as-applied challenge fails because the presiding officer provisions of the

Policy are constitutionally permissible time, place, or manner restrictions under well-

established First Amendment principles. Id. at PageID 709.

The Court will first address the threshold issue of standing followed by the merits of

any remaining claims.

A. Mr. Oswald’s Standing to Bring His First Amendment Claims.

Article III of the Constitution only allows courts to resolve constitutional issues when

the plaintiff has standing—or when necessary to decide the legal rights of litigants in live

“Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1; Resurrection Sch. v. Hertel, 35 F.4th

524, 528 (6th Cir. 2022) (en banc). Because Mr. Oswald challenges the Public Participation

Policy, Article III requires Mr. Oswald to prove his “standing” to maintain a claim in the first

1 Because it is unclear from his Complaint, the Court construes this language as the text Oswald is contesting,

given that Oswald emphasizes it most in his briefing. See Doc. 36, PageID 735.

instance to challenge the Policy. Davis v. Colerain Twp., 51 F.4th 164, 171 (6th Cir. 2022).

Under the three-part test for standing, Mr. Oswald must establish that: (1) he has (or will)

suffer an injury; (2) the Public Participation Policy likely caused (or will cause) the injury; and

(3) his requested relief likely would redress it. Id. (citing Ass’n of Am. Physicians & Surgeons v.

U.S. FDA, 13 F.4th 531, 537 (6th Cir. 2021)).

The Court finds two additional legal components of the standing framework applicable

to Mr. Oswald’s claims. First, as it pertains to summary judgment, Mr. Oswald must present

enough evidence to create a genuine issue of material fact over all three standing elements. Id.

(citing McKay v. Federspiel, 823 F.3d 862, 867–68 (6th Cir. 2016)). Conclusory allegations

about a past injury or vague allegations about a future one will not suffice at this stage. See

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013); Lujan v. Defenders of Wildlife, 504 U.S.

555, 564 (1992).

Second, Mr. Oswald cannot establish standing “in gross.” Davis, 51 F.4th at 171

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006)). In other words, Mr. Oswald

must prove standing’s elements for each claim and remedy. Id. For example, a claim of past

injury generally permits a plaintiff to seek only the traditional remedy for past harm—

damages. Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105–10 (1983)). That same

previously harmed plaintiff may not seek a forward-looking remedy—like an injunction—

without evidence that the harmful conduct is likely to reoccur. Id.

The Court will first address whether Mr. Oswald has standing to bring his facial

challenge, followed by an analysis of his as-applied challenge.

i. Mr. Oswald Lacks Standing for His Facial Challenge and Request for

Injunctive Relief Because He Has Failed to Demonstrate That Any

Alleged Harm Will Reoccur.

Starting with Mr. Oswald’s facial challenge, the Court finds that Mr. Oswald has not

established standing for his facial challenge or his related request for injunctive relief.2 In

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), the Supreme Court recognized that

“[a]n allegation of future injury may” satisfy the injury-in-fact requirement if the alleged

“threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will

occur.’” Id. at 158 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 n. 5 (2013)). The

“certainly impending” test generally requires proof that a plaintiff plans to engage in conduct

arguably proscribed by the regulation at issue and that there is a credible threat the defendant

will enforce the regulation against the plaintiff. See Id. at 161–64; McKay, 823 F.3d at 867. To

prove standing to sue, Oswald must offer evidence demonstrating the presence of “certainly

impending” speech that would “arguably [be] proscribed by” the Public Participation Policy,

and the Board plans to reapply the Policy prospectively to terminate his speech in a manner

violative of the Frist Amendment. See Davis, 51 F.4th at 172. Mr. Oswald has made no such

showing.

Mr. Oswald’s facial challenge seeks injunctive relief “enjoin[ing] the School Board

from continuing to punish [him] for engaging in protected speech, restraining his speech,

chilling his speech, and fabricating rules,” as well as enjoining the Board from “enforc[ing] its

2 It is unclear from Mr. Oswald’s Complaint which of the two claims (i.e., his facial First Amendment challenge

or his as-applied First Amendment challenge) that each of Oswald’s requested remedies (i.e., injunctive relief

and compensatory damages) apply to. However, since Oswald’s request for injunctive relief involves the future

enforcement of the Public Participation Policy, the Court construes the injunctive relief to relate to the facial

challenge. And because the compensatory damages portion of the Complaint relates to the past application of

the Public Participation Policy, the Court construes the compensatory damages portion to apply only to the

as-applied challenge.

unconstitutionally vague, or overbroad and content-based rules.” Doc. 1, PageID 6. But

Oswald’s challenge necessarily fails under a Davis analysis because he testified that he has no

future plans to speak at another Board meeting. Doc. 23, PageID 356–59. Given Oswald’s

stated plans, his case sorely lacks any evidence of a “certainly impending” injury or

“substantial risk that harm will occur.” See Susan B. Anthony List, 134 S. Ct. at 2341. Under

the circumstances, nothing that Oswald might say at a future Board meeting, regardless of

whether it is controversial or not, will ever be restricted by the presiding officer because the

remarks could be labelled “personally directed, abusive, obscene, or irrelevant.”3 Doc. 36,

PageID 735 (quoting Doc. 23-2, PageID 457). In sum, Oswald has not shown that he will

likely suffer any injury caused by the Public Participation Policy that the relief he requests—

an injunction—will likely redress. See Davis, 51 F.4th at 171.

As further proof of the Board’s constitutionally permissible use of the Policy relative

to Oswald’s speech, Ms. Casper testified that she never considered Mr. Oswald’s comments

at the June and August Meetings to violate the Public Participation Policy—a contention Mr.

Oswald readily concedes. Doc. 36, PageID 729. Indeed, the record demonstrates that

Oswald’s first two speeches as a registered participant at Board meetings (in June and August)

went uninterrupted and no part of his speeches were ever terminated by the presiding officer

despite criticism of Board policies. Doc. 23-4, PageID 461–65; Doc. 23-5, PageID 467–70.

Curiously, even though Oswald gave the same or a similar speech in August and September

3 The Court does note that while Oswald seems to be challenging use of the term “obscene” in the Public

Participation Policy, it has long been the case that the state may prohibit obscene language in a public forum.

McElhaney v. Williams, 81 F.4th 550, 557 (6th Cir. 2023) (“[T]here are a handful of categories of speech for

which content-based prohibitions may be permissible. But it is a short and somewhat notorious list. It includes

‘speech expressed as part of a crime, obscene expression, incitement, and fraud.’”) (quoting Novak v. City of

Parma, 932 F.3d 421, 427 (6th Cir. 2019)). Therefore, whether such a restriction is proper is inapplicable to

the Court’s analysis here.

opposing the district mask mandate implemented by the Board, Oswald asserts that the true

reason Ms. Casper terminated his September speech was because his comments were “adverse

to the views of the Board”—a category of speech not expressly addressed by the text of the

Public Participation Policy. Doc. 36, PageID 731. Mr. Oswald’s contention falls well short of

being logical.

To begin, Mr. Oswald argues that the Board sought to suppress his ability to express

his views critical of Board policies, even though he had twice before opposed Board policies

at meetings and the Board did not employ the Public Participation Policy to terminate his

comments. Indeed, the Policy was only used to terminate his comments when he violated the

prohibition against addressing the audience and instead directed his remarks at the presiding

officer. It is clear from the evidence, therefore, that the Policy was being applied to conduct,

not content. Oswald has also not shown that the Policy purports to regulate his past speech.

Criticizing rules such as mask mandates promulgated by the Board clearly is not proscribed

by the Public Participation Policy as Oswald claims. Assuming arguendo that “the content of

[Mr. Oswald’s] past speech [i]s evidence of the probable content of [his] future speech, [Mr.

Oswald] has not shown that the [Policy] would cover that future speech” in a manner violative

of important First Amendment principles of free expression in a limited-public forum. See

Davis, 51 F.4th at 173.

For the reasoned stated, Mr. Oswald has not presented sufficient evidence to create a

genuine issue of material fact establishing that he possesses standing to obtain injunctive relief

or for asserting a valid facial challenge to the Public Participation Policy. Summary judgment

is therefore GRANTED regarding Mr. Oswald’s facial First Amendment challenge and

related request for injunctive relief against enforcement of the Policy.

ii. Even If Mr. Oswald Could Establish Standing, His Facial Challenge

Is Moot.

And even if Mr. Oswald had standing to bring his facial challenge in federal court,

Article III requires a real dispute to exist at all stages of the litigation. See Arizonans for Off.

Eng. v. Arizona, 520 U.S. 43, 67 (1997). This rule exists because when later events eliminate

or make it impossible for the court to grant relief, the case has become moot, and a court must

dismiss it. See Resurrection Sch., 35 F.4th at 528. “If, for example, a defendant stops engaging

in the conduct that threatens to harm the plaintiff, this choice could moot a request for an

injunction against that conduct.” Davis, 51 F.4th at 174 (citing Already, LLC v. Nike, Inc., 568

U.S. 85, 91–92 (2013)). This scenario typically occurs when a legislature repeals a challenged

law, or an executive officer repeals a challenged regulation. See Resurrection Sch., 35 F.4th at

528; see also Thompson v. Whitmer, No. 21-2602, 2022 WL 168395, at *3 (6th Cir. Jan. 19,

2022) (citing cases).

The Sixth Circuit has cautioned, however, that courts ought to be skeptical of whether

the repeal or amendment of challenged conduct has mooted a case. Davis, 51 F.4th at 174

(citing Already, 568 U.S. at 91). In these instances, a defendant or governmental entity must

show that it is “absolutely clear” that the rescinded conduct could not “reasonably be

expected” to happen in the future. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167, 190 (2000). It must be noted that in comparison to other types of defendants,

governments have an easier time satisfying this test because it is presumed that they will not

resume their challenged conduct unless objective evidence suggests that they have made a bad

faith change to avoid judicial review. See Thomas v. City of Memphis, 996 F.3d 318, 324–25 (6th

Cir. 2021). This presumption gains even more strength if the government has changed course

through a formal process because the formalities involved make it more difficult to reinstitute

the old policy later. See id.

Furthermore, when the government has made a change because of something external

to the plaintiff’s suit, a case is even more likely to be deemed moot. See Thompson, 2022 WL

168395, at *3 (citing Geduldig v. Aiello, 417 U.S. 484, 491–92 (1974)). “In that scenario, it is

unlikely that the suit’s dismissal would cause the defendant to return to its old ways because

the defendant made the change for a different reason.” Davis, 51 F.4th at 175.

That same logic and rationale expressed in Davis apply here. Oswald’s anti-mask

speech terminated by the presiding officer occurred at the September Meeting. On November

29, 2021, the Board revised the Public Participation Policy by excising several of the terms in

the Policy that allowed the presiding officer to terminate a speaker’s remarks if they were

considered “too lengthy,” “personally directed,” “abusive”, or “irrelevant.” See Doc. 24-3,

PageID 536–38. The table below shows those changes to the Policy promulgated by the

Board:

Original Revised

The presiding officer may . . . interrupt, The presiding officer may . . . interrupt,

warn, or terminate a participant’s statement warn, or terminate a participant’s session

when the statement is too lengthy, when they make comments that are

personally directed, abusive, obscene, or repetitive, obscene, and/or comments that

irrelevant . . . . constitute a true threat (i.e., statements

meant to frighten or intimidate one (1) or

more specified persons into believe that they

will be seriously harmed by the speaker or

someone acting at the speaker’s behest).

Compare Doc. 23-2, PageID 457 with Doc. 24-3, PageID 538. The minutes for the School

Board’s November 29, 2021, meeting show that the Board had voted 4-1 to approve this

revision in a formal “legislative-like” meeting.4 See Davis, 51 F.4th at 175 (citing Thomas, 996

F.3d at 326). While it may seem convenient that the Public Participation Policy was revised

shortly after Mr. Oswald’s suit was filed on October 25, 2021, a closer look at the history of

the amendments demonstrates that these changes were proposed as early as June 14, 2021—

for reasons completely unrelated to Oswald’s decision to comment on mask mandates at the

September Meeting or, importantly, institute this lawsuit.5 It follows that the Board began

revising the Public Participation Policy in light of an “external” factor that was completely

separate from Mr. Oswald’s yet-to-be-filed lawsuit. See Davis, 51 F.4th at 175 (citing

Thompson, 2022 WL 168395, at *3). As such, nothing in the record makes the Court suspicious

that the Board’s amending the Public Participation Policy was done with any lack of sincerity

or only as a measure to avoid judicial scrutiny. The record also shows that it is highly unlikely

that the Board will attempt to reinstate the contested language in the future. See Doc. 34,

PageID 693 (Ms. Casper stating that she is “not currently aware of any attempts by the Board

to reinstate” the excised language which had allowed the presiding officer to terminate a

speech if the speaker’s remarks were ever judged “too lengthy,” “personally directed,”

“abusive”, or “irrelevant”).

Under the circumstances, the Court finds that the November 29, 2021, amendments

adopted by the Board to the Public Participation Policy have mooted Mr. Oswald’s facial

challenge and claim for injunctive relief.

4 Courts “can take judicial notice of, for example, administrative rules, regulations, and orders, and certain

judicial and public records.” Davis., 51 F.4th at 176. The November 29, 2021, Lakota School Board meeting

minutes are publicly available at https://go.boarddocs.com/oh/lakota/Board.nsf/files/C9NL3R549E41/$f

ile/November%2029%202021.pdf (last visited May 23, 2024).

5 See Lakota School District Meeting Minutes, (Jun. 14, 2021) https://go.boarddocs.com/oh/lakota/Board.ns

f/files/C49LW957BCD3/$file/June%2014%202021.pdf (last visited May 23, 2024).

iii. Mr. Oswald Has Standing to Bring His As-Applied Challenge and

Request for Damages.

Next, the Court will address Mr. Oswald’s as-applied First Amendment challenge to

the Public Participation Policy along with his request that the Court order the Board—

ostensibly the Lakota Local School District—to pay him monetary damages. Unlike before,

the Court finds that Mr. Oswald meets all three Davis standing elements to mount this

challenge. As an initial matter, Mr. Oswald contends that he was injured when the presiding

officer terminated his speech at the September Meeting, which, in effect, “chill[ed] his

speech,” in violation of his First Amendment right of free expression. Doc. 36, PageID 734;

Doc 1, PageID 3–6; see also McKay 823 F.3d at 869 (stating that past conduct accompanied by

allegations of subjective chilling of speech establishes an injury-in-fact under the First

Amendment).

With respect to the second Davis factor, Mr. Oswald argues that his alleged injury

occurred because the presiding officer, Ms. Casper, terminated his speech pursuant to the

Public Participation Policy. Doc. 36, PageID 735. This fact is not in dispute. Ms. Casper has

admitted that she terminated Mr. Oswald’s speech because he refused to follow the Public

Participation Policy requiring speakers to address the presiding officer. Doc. 34, PageID 693.

Lastly, Oswald’s alleged injury can be redressed in a lawsuit because the relief

requested—monetary damages—is the traditional remedy for past harm. See Doc. 1, PageID

6; see also Kareem v. Cuyahoga Cnty. Bd. of Elections, 95 F.4th 1019, 1027 (6th Cir. 2024) (finding

that the plaintiff’s request for damages redresses alleged retrospective harm).

It is apparent from a review of each of the Davis factors that there exists adequate

evidence in the record to establish all three standing elements. Mr. Oswald has met his burden

of presenting an as-applied challenge to the Public Participation Policy and potentially

obtaining retroactive relief. Mr. Oswald’s ability to claim standing to challenge the application

of the Policy under an as-applied theory, however, is only the first step. Mr. Oswald must still

be able to show that the Board applied the Policy in a manner depriving him of his First

Amendment right to freedom of expression in order to establish entitlement for relief. In

making this determination, this Court must remain mindful that not all expression one wants

to make in a limited-public setting qualifies as protected speech under the First Amendment.

B. Mr. Oswald’s As-Applied Challenge Fails As a Matter of Law Because the

Policy Is a Proper Manner Restriction.

The First Amendment of our U.S. Constitution holds that “‘Congress shall make no

law’ . . . ‘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, 587 U.S. 802,

808 (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). “Within such a forum, the government may

regulate the time, place, and manner of speech so long as the regulation is (1) ‘content-

neutral,’ (2) ‘narrowly tailored to serve a significant governmental interest’ and (3) ‘leave[s]

open ample alternative channels for communication of the information.” Lowery, 586 F.3d at

432 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 295 (1984)) (cleaned

up).

The Board argues that Mr. Oswald’s applied First Amendment challenge fails because

the Public Participation Policy, as applied to Oswald at the September Meeting, was a

constitutionally permissible restriction on the manner of speech. Doc. 35, PageID 708–09.

Mr. Oswald, on the other hand, argues that his speech was terminated because of its content—

more specifically because his remarks were critical of the Board’s adoption of a district-wide

mask mandate. Doc. 36, PageID 734. As explained below, the Court rejects Mr. Oswald’s as-

applied First Amendment challenge.

i. The Policy As Applied to Mr. Oswald Is Content-Neutral.

A policy is content-neutral on its face if it is “justified without reference to the content”

of the speech. Cmty. for Creative Non-Violence, 468 U.S. at 293. As the Sixth Circuit instructs,

policies with a stated purpose of efficiency and access (such as ones that “allow everyone a

fair and adequate opportunity to be heard”; or that “assure that the regular agenda of the

Board is completed”; or that “recognize the voluntary nature of the Board[‘s] time and use

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.” Lowery, 586 F.3d at 433.

The rule relevant to Mr. Oswald’s dispute is the Public Participation Policy’s presiding

officer provision—or its requirement that “[a]ll statements [by commentors] shall be directed

to the presiding officer.” Doc. 24-3, PageID 534. The requirement to direct speech to a board

member has everything to do with the manner of speech rather than its content. As such, the

text of the Public Participation Policy’s presiding officer provision clearly supports a finding

that it is content-neutral.

The Public Participation Policy and the presiding officer provision’s overall purpose is

to “permit the fair and orderly expression of” public comments. Doc. 24-3, PageID 534.

Similarly, as the Board argues and as the testimony of both the former superintendent of the

school district and Ms. Casper demonstrates, the purpose of the presiding officer provision is

to reduce disruption at Board meetings and to promote efficient, orderly, and productive

meetings. Doc. 33, PageID 646 (former superintendent Miller’s testimony); Doc. 34, PageID

693 (Ms. Casper’s testimony). This justification has “nothing to do with the subject of an

individual’s speech and everything to do with conducting orderly and productive meetings.”

E.g., Lowery, 586 F.3d at 433. For this reason alone, the Court finds that the presiding officer

provisions of the Policy limiting the manner of participants commenting at Board meetings is

a facially content-neutral restriction on speech—and one that is therefore constitutionally

permissible.

Even though the presiding officer provision is content neutral on its face, the question

remains whether it was content neutral as applied to Mr. Oswald at the September Meeting.

“A facially constitutional time, place, or manner restriction will be unconstitutional as applied

where the restriction is content neutral on its face but has been applied in a viewpoint specific

manner.” Teufel v. Princeton City Sch. Dist. Bd. of Educ., No. 1:12-cv-355, 2013 WL 143808, at

*12 (S.D. Ohio Jan. 11, 2013).

Ms. Casper, the Board member in charge at the September Meeting, testified that she

terminated Mr. Oswald’s speech pursuant to the provision requiring statements to be directed

towards the “presiding officer.” Doc. 34, PageID 693. Ms. Casper further testified that she:

[O]nly interrupted, warned, and eventually terminated Mr. Oswald’s public statement

at the September 2021 meeting because he repeatedly violated the [Public Participation

Policy]’s requirement of directed statements to the presiding officer. Mr. Oswald’s

violation of that policy, despite several warnings, was disruptive to the conduct of the

meeting. Had he complied with the policy I would have permitted Mr. Oswald to

present his public statement for three minutes without interruption as I had done in

the past.

Id. at PageID 693. In an obvious concession, Mr. Oswald testified that “there were a few

occasions when Ms. Casper told [him] to address the presiding officer,” and that he did not

abide by that directive because he was “using [his] three minutes of free speech to address

everybody in that room.” (Emphasis added.); Doc. 23, PageID 374–75. In short, there is no

genuine dispute of material fact that Mr. Oswald failed to follow the content-neutral rule

requiring him to direct his comments towards the presiding officer, and that the presiding

officer subsequently terminated his speech because Mr. Oswald refused to follow protocol.

Indeed, the transcript of the September Meeting shows that Mr. Oswald began his

remarks by first expressing that he was going to speak directly with the parents and then turned

to face the audience. Doc. 23-7, PageID 475; Doc. 24, PageID 522. Further, despite receiving

numerous warnings from the presiding officer, Mr. Oswald proceeded to face and address the

parents in audience at the September Meeting. Doc. 23-7, PageID 475–77.6 Only after

informing Mr. Oswald that the Public Participation Policy required him to address the Board

four times did Ms. Casper request that the law enforcement officer in the room remove Mr.

6 The record reflects that Mr. Oswald attempted to address the parents on six different occasions:

• “I’m going to speak with the parents.”

• “I’m going to speak to the parents now wearing masks.”

• “Now, parents, if the masks work, then the masks work.”

• “Now, parents, if you want your kids unmasked, go ahead and unmask them.”

• “Parents, there is no mandate out there ordering . . . .”

• “I’m speaking to all the other parents up there too.”

Doc. 23-7, PageID 475–77.

Oswald. Id. It is no wonder that Ms. Casper reached the conclusion that Mr. Oswald

“forfeited [his] time because [he] did not follow” the requirement under the Public

Participation Policy to address the presiding officer and asked that he be removed. Id. at

PageID 476. Given that Mr. Oswald eventually left the podium by his own volition, the

removal provisions of the Policy did not need to be enforced. Doc. 23, PageID 334. The record

thus shows that the presiding officer provision of the Policy was applied without any regard

to the content of Mr. Oswald’s speech.

Nevertheless, Mr. Oswald strenuously contends that the Board engaged in viewpoint

discrimination against him. Oswald argues that the Board or the presiding officer sought to

“silence” him at the September Meeting because he was intent on speaking against the district-

wide COVID-19 mask mandate. Doc. 36, PageID 733–34. “[A] defendant’s motive is a

question of fact that must be determined by a jury, but to survive [the Board’s] motion for

summary judgment [Mr. Oswald] must present sufficient evidence to allow a jury to find that

[the Board] intended to silence h[is] viewpoint.” Timmon v. Wood, 633 F. Supp. 2d 453, 463

(W.D. Mich. 2008) (citations omitted). Mr. Oswald has failed to provide even a scintilla of

evidence supporting this hypothesis.

The record shows that Mr. Oswald was permitted to express views antagonistic or

critical of Board policies without interruption at both the June and August Meetings with one

key difference from the September Meeting: Mr. Oswald addressed the parents in the

audience at the September Meeting rather than the presiding officer. Doc. 23, PageID 364–

66. Further undermining Mr. Oswald’s argument is the fact that he spoke against the same

district-wide mask mandate at the August Meeting—precisely the type of speech Oswald

claims that he was silenced for presenting at the September Meeting. PUF, at ¶ 6; Doc. 23-5,

PageID 468–70. It strains credulity for Mr. Oswald to now claim that the Board intended to

silence him for his views when the only difference between the August and September

Meetings that occurred is his own failure to follow the rule requiring him to address his

comments only to the presiding officer of the Board.

Separately, Oswald makes much of the argument that the Policy was not evenly

applied. Doc. 36, PageID 734. He contends that the former superintendent, who made

comments at the September Meeting concerning the number of COVID-19 cases in the school

district, was permitted to speak directly to the audience. Id. The video recording referenced

by Mr. Oswald in his papers shows that the former superintendent began his comments by

addressing audience members before being told by the presiding officer to address the Board—

a directive which he immediately followed.7 Nonetheless, the fact that the Board did not

immediately terminate the former superintendent’s remarks under the Public Participation

Policy does not necessarily mean that Oswald’s First Amendment right to free expression was

infringed. Even viewed in a light most favorable to Mr. Oswald, it is evident from a review of

the entire record that the presiding officer did not seek to terminate Oswald’s expression of

his views simply because they were contradictory to Board policies. And this Court, like

others presented with similar constitutional challenges, will not “make First Amendment-

related speculations on the hidden motives of” a governmental entity, like the Board, without

some proof that there was an attempt to apply a policy so as to restrict speech simply because

it might, at the time, have been considered unpopular or controversial. Ater v. Armstrong, 961

F.2d 1224, 1229 (6th Cir. 1992).

7 Lakota Local Schools, September 27, 2021: Lakota Board of Education Regular Meeting, YOUTUBE (Sep. 29, 2021),

https://www.youtube.com/watch?v=DHy-Dhd6NQU (the former superintendent’s comments are

timestamped at about 00:49:10–00:55:00).

Based on the above, the Court finds there is no genuine dispute of material fact. The

Public Participation Policy, as applied to Oswald, was a valid, content-neutral restriction

placed on speech in a limited-public forum that was permissible under the First Amendment.

ii. The Policy Is Narrowly Tailored to Serve a Significant Governmental

Interest.

Upon finding that the presiding officer provision of the Policy is content neutral, the

Court must now assess whether it narrowly serves a significant governmental interest. Mr.

Oswald makes no argument concerning this factor. See Doc. 36, PageID 733–34. The Board,

however, argues that “the purpose of the restriction is to reduce disruption at board meetings

and to promote efficient, structured, and productive meetings.” Doc. 35, PageID 708–09. As

discussed above, the record reflects that this is exactly the purpose for the Board maintaining

the Public Participation Policy as a whole. This rationale satisfies the government-interest

prong. See Lowery, 586 F.3d at 433 (“Unstructured, chaotic school board meetings not only

would be inefficient but also could deny other citizens the chance to make their voices

heard.”); Ison, 3 F.4th at 895–96 (finding that a pre-registration requirement to speak at school

board meetings serves a governmental interest of efficient and orderly meetings).

The presiding officer provision of the Policy is also narrowly tailored to serve

legitimate governmental interests. “Narrow tailoring . . . requires not ‘the least restrictive or

least intrusive means’ of serving a government interest, but only that the government’s interest

‘would be achieved less effectively absent the regulation.’” Ison, 3 F.4th at 896 (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 798–99 (1989)). The Court may not invalidate a time,

place, manner regulation merely because it disagrees with the legislature on the “most

appropriate method for promoting [its] interest[],” but regulations cannot “burden

substantially more speech than is necessary.” Id. (quoting Ward, 491 U.S. at 799–800).

With few exceptions, the presiding officer provision of the Public Participation Policy

allows most forms of speech. It merely requires speakers to direct their public remarks to the

“presiding officer,” or the member of the Board leading the meeting. Doc. 24-3, PageID 534.

Nothing in the Public Participation Policy’s presiding officer provision constitutes an

unconstitutional “wholesale ban” on speech. Cf. Cleveland Area Bd. of Realtors v. City of Euclid,

88 F.3d 382, 388 (6th Cir. 1996). And, as this Court in the preceding paragraphs has

determined, the provision relates to articulated and important governmental interests of

maintaining order and efficiency and allowing access for everyone—not just Oswald—to be

given a fair and adequate opportunity to be heard. See Lowery, 586 F.3d at 433; cf. Watchtower

Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 168–69 (2002); Miller

v. City of Cincinnati, 622 F.3d 524, 536 (6th Cir. 2010); Ison, 3 F.4th at 896. Mr. Oswald has

failed to point the Court to any evidence that amounts to a genuine disagreement concerning

whether the presiding officer provision is narrowly tailored which might necessitate a factual

determination by a jury.

iii. The Policy Leaves Open Alternative Channels for Communication.

Finally, the Court must consider whether the presiding officer provision leaves open

ample alternative channels of communication for a speaker to express herself. The Sixth

Circuit instructs that “[a]n alternative channel of communication can be adequate even when

the speaker is denied its best or favored means of communication.” Harrington v. City of

Brentwood, 726 F.3d 861, 865 (6th Cir. 2013) (citing Phelps-Roper v. Strickland, 539 F.3d 356,

372 (6th Cir. 2008)). Thus, “[t]he key for purposes of the adequate-alternatives analysis is

whether the proffered alternatives allow the speaker to reach its intended audience.” Id. (citing

Phelps-Roper, 539 F.3d at 372; Prime Media, Inc. v. City of Franklin, 181 F. App’x 536, 541 (6th

Cir. 2006)). The Supreme Court has found that this requirement is easily met when, for

example, a restriction “continues to permit expressive activity in the [public forum] and has

no effect on the quantity or content of that expression beyond regulating the extent of

amplification.” Ward, 491 U.S. at 802.

Although the Policy’s presiding officer provision restricts who speakers may address

when utilizing their allotted three minutes of time, that provision does not restrict speakers in

any fashion prohibited by the First Amendment. The presiding officer provision—and in a

broader sense the Public Participation Policy itself—was not applied to Mr. Oswald because

his speech was “abusive,” “obscene,” “irrelevant,” or “inappropriate.” Doc. 36, PageID 735

(citing Doc. 24, PageID 521–22). And, like Mr. Oswald accomplished on two previous

occasions, the presiding officer provision permits him to speak freely on controversial topics

at Board meetings without any restrictions beyond regulating who he may address and how

long he may address them.

Nothing the Board has undertaken prevents Mr. Oswald (or anyone else for that

matter) from being able to speak out against mask mandates or any other hot-button issues to

reach his intended audience. The way the provision was applied in this instance had nothing

to do with the content, quantity, or quality of what Mr. Oswald wanted to say, but everything

to do with the way he wanted to say it. There has been no showing that Mr. Oswald has been

foreclosed from speaking critically about any current or future Board policy in his preferred

forum—meetings of the Lakota Local School Board.

Based on the foregoing, the Board is GRANTED summary judgment on Mr. Oswald’s

First Amendment as-applied claim.

IV. CONCLUSION

For the reasons stated, the Court GRANTS the Motion for Summary Judgment of

Defendant Lakota Local School Board (Doc. 35) and DISMISSES Plaintiff Brian Oswald’s

Complaint (Doc. 1). The Court notes that Mr. Oswald’s facial challenge under the First

Amendment is dismissed WITHOUT PREJUDICE because the Court lacks jurisdiction to

decide the merits of his claim. See Davis v. Colerain Twp., 51 F.4th 164, 176 (6th Cir. 2022).

Alternatively, Mr. Oswald’s as-applied First Amendment challenge is dismissed WITH

PREJUDICE. The Court ORDERS the clerk to ENTER JUDGMENT and TERMINATE

this matter from the docket.

SO ORDERED

August 9, 2024 Spas, 1 phan

effery P. ins

United States District Judge

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