# Oswald v. Lakota Local School Board

> District Court, S.D. Ohio · August 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10665081

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10665081

## How later opinions describe it (automated extraction)

- stating that past conduct accompanied by allegations of subjective chilling of speech establishes an injury-in-fact under the First Amendment
- finding that the plaintiff’s request for damages redresses alleged retrospective harm

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665081. Public record. Not legal advice.