Moms For Liberty - Wilson County, Tenn. v. Wilson Cnty. Bd. of Educ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0244p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MOMS FOR LIBERTY - WILSON COUNTY, TENNESSEE; ROBIN LEMONS;

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AMANDA DUNAGAN-PRICE,

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Plaintiffs-Appellants, │

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v. > No. 24-5056

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WILSON COUNTY BOARD OF EDUCATION, dba Wilson County │

Schools; JAMIE FAROUGH, individually and in her official capacity as │

the Chair and member of the Wilson County Board of Education; │

KIMBERLY MCGEE, in her official capacity as the Vice Chair and │

member of the Wilson County Board of Education; MELISSA LYNN, │

BETH MEYERS, JOSEPH PADILLA, GREG HOHMAN, and DONNIE SELF, │

in their official capacities as members of the Wilson County Board of │

Education, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:23-cv-00211—Eli J. Richardson, District Judge.

Argued: October 29, 2024

Decided and Filed: September 9, 2025

Before: STRANCH, THAPAR, and MURPHY, Circuit Judges.

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COUNSEL

ARGUED: Brett R. Nolan, INSTITUTE FOR FREE SPEECH, Washington, D.C., for

Appellants. Christopher C. Hayden, SELLERS, CRAIG, AND HAYDEN, INC., Jackson,

Tennessee, for Appellees. ON BRIEF: Brett R. Nolan, INSTITUTE FOR FREE SPEECH,

Washington, D.C., John I. Harris, SCHULMAN, LEROY & BENNETT PC, Nashville,

Tennessee, for Appellants. Christopher C. Hayden, SELLERS, CRAIG, AND HAYDEN, INC.,

Jackson, Tennessee, for Appellees.

STRANCH, J., delivered the opinion of the court in which THAPAR and MURPHY, JJ.,

concurred. THAPAR, J. (pp. 20–23), delivered a separate concurring opinion in which

MURPHY, J., concurred.

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OPINION

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JANE B. STRANCH, Circuit Judge. This suit, brought under 42 U.S.C. § 1983, relies on

the First Amendment’s Free Speech Clause to challenge rules governing public comments at a

school board’s public meetings. During regularly scheduled meetings, the Wilson County Board

of Education permits public comments that comply with the Board’s rules, which are set forth in

Policy 1.404 and the script the Board’s Chair reads at the beginning of each public comment

period. Robin Lemons, Amanda Dunagan-Price, and Moms for Liberty — Wilson County, TN

(the “Wilson County Chapter”) challenged three of those rules on First Amendment grounds and

moved the district court to enjoin them while the case proceeded. The district court denied

Plaintiffs’ motion for a preliminary injunction. For the following reasons, we AFFIRM the

district court’s order and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Board’s Rules

The Wilson County Board of Education is charged with administering public schools in

Wilson County, Tennessee. In line with its Policy Manual, the Board holds monthly school

board meetings. Tennessee law dictates that the Board’s Chair preside over all school board

meetings, Tenn. Code Ann. § 49-2-205(a)(1), and that, absent state or constitutional law

instructing otherwise, those meetings shall be open to the public, id. § 8-44-102(a).

The Board routinely hears public comment during its meetings. To provide public

comment, individuals must comply with Policy 1.404, which specifies that “[a]ny matter relating

to the operation of the school system may be appealed to the Board.” R. 17-4, Ex. B, PageID

131. However, to facilitate settlement of all matters “at the lowest level of responsibility,” the

Board “will not hear complaints or concerns which have not advanced through the proper

administrative procedure from the point of origin.” Id. “If all [the] steps of the administrative

procedure have been pursued and there is still a desire to appeal to the Board, the matter shall be

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referred in writing to the office of the Director of Schools and the Board shall determine whether

to hear the appeal.” Id.

Policy 1.404 also dictates how the Board determines whether to hear public comments

and provides three avenues through which a member of the public may address the Board. The

first avenue permits a person “desiring to appear before the Board [to] . . . submit a written

request with descriptive materials to the office of the Director of Schools ten (10) working days

before the scheduled regular [s]chool [b]oard meeting.” Id. “If the request is approved,” an item

will be placed on the Board’s meeting agenda and the person will be allotted time to speak. Id.

The second avenue permits a would-be speaker wishing to provide comment on a topic already

on the agenda to “sign up . . . or make a request to any Board Member before the beginning of

[any] Board [m]eeting” after the agenda is published. Id. The third and final avenue allows the

Chair or another Board Member to recognize a person “for remarks to the Board [on a non-

agenda item] if he/she determines that such is in the public interest.” Id. This public-interest

provision applies only to speakers who failed to meet the requirements of the first two avenues

for addressing the Board. Regardless of the avenue pursued, Policy 1.404 also requires each

speaker to state his or her name and address when speaking to the Board.

At the beginning of each public comment period, the Chair reads aloud from a script that

includes additional rules for addressing the Board. Generally, the Chair also offers to reread the

script before each speaker addresses the Board. The iteration of the script at issue here stated:

Please state your name, address, and subject of your presentation. Your topic

must be specific in nature dealing with only policies and procedures. We reserve

the right to terminate remarks at any time if you fail to adhere to the guidelines or

[if] your comments become abusive to an individual [B]oard [M]ember[,] the

[B]oard as a whole[,] . . . the [D]irector of [S]chools[,] or any employee of the

school system. . . . At the conclusion of your remarks, the [B]oard and the

Director of Schools shall have the privilege to ask questions.

R. 1, Compl., PageID 8. Neither Policy 1.404 nor any other formal Board policy contains the

restriction on abusive comments included in the Chair’s script.

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B. Plaintiffs’ Public Comments

Moms for Liberty is a national organization whose members seek to influence public

education policy at all levels of government. Moms for Liberty, About Us,

https://momsforliberty.org/about/. Amanda Dunagan-Price chairs the organization’s Wilson

County Chapter, which she founded in 2021 after the Board, in her view, mismanaged its

response to the Covid-19 pandemic and introduced an “overly political curriculum.” R. 1,

Compl., PageID 10.

Dunagan-Price avers that she has either attended or watched a recorded video of many of

the Board’s monthly meetings and has provided public comment several times since May 2021.

Her comments have focused on removing certain books from school libraries, and the Board has

permitted her to speak for her full allotted time each time without interruption. However,

Dunagan-Price avers that she: (1) “do[es] not know what ‘abusive’ means” in the Chair’s script

and “worrie[s] that a Board of Education [M]ember would take offense from [her] comments and

stop [her] from speaking,” R. 17-2, Dunagan-Price Decl., PageID 124; (2) has withheld her

harshest criticisms of the Board, school administrators, and school policies out of fear that the

Board or one of its Members will invoke the abusive-comments restriction in the Chair’s script

to prevent her from speaking; (3) fears repercussions for her statements on controversial issues

and has therefore chosen to disclose her school district’s zone number rather than her home

address; and (4) as a result, worries that Board Members will invoke the address-disclosure

requirement in the Chair’s script and Policy 1.404 to prevent her from speaking at its meetings.

Robin Lemons, the secretary of the Wilson County Chapter, joined in early 2022 out of

similar concerns with the Board’s curriculum. Lemons attended several Board meetings and

decided to speak at one held on October 3, 2022. Prior to the meeting, she contacted Board

Member Joseph Padilla for permission to speak on a non-agenda item. Padilla granted Lemons’s

request. At the beginning of the public comment period, the Chair read aloud from the script

excerpted above, and when Lemons approached the podium to address the Board, the Chair

asked if Lemons would like the script to be read to her. Lemons declined. The Chair then asked

for her name and address, and, although Lemons gave her name, she refused to share her address.

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Lemons then began to describe an incident where her daughter was asked by another

fourth-grade girl to meet her in the school bathroom to “do sex.” About 45 seconds into

Lemons’s allotted time, the county attorney interrupted to ask whether the matter had been

referred to the appropriate agency, and, when the attorney heard that the Department of Child

Services was still conducting its investigation, he stated that the matter did not need to be

discussed openly at the meeting. The ongoing investigation likely implicated Policy 1.404’s

requirement that all appeals must be “advanced through the proper administrative procedure

from the point of origin” before being brought to the Board. Lemons then criticized the Director

of Schools, Jeff Luttrell, for his alleged mishandling of the matter. The Chair interrupted,

saying, “Ms. Lemons, you also refused to adhere to the guidelines of giving your address, so

we’ve asked you to stop talking today, because there’s, from my understanding there’s more than

one [student] involved. And so we’ve asked that you stop, for now, and let this process

continue.” Lemons then returned to her seat.

Like Dunagan-Price, Lemons and other members of the Wilson County Chapter allege

that they intend to continue to address the Board but have refrained from doing so or altered their

speech because they do not want to disclose their addresses out of fear of reprisal from those

who may disagree with their criticisms and because the Chair may censor them pursuant to the

abusive-comments restriction.

C. Procedural History

In March 2023, the Wilson County Chapter, Dunagan-Price, and Lemons filed suit

alleging violations of 42 U.S.C. § 1983 on First Amendment grounds against the Board and its

Members, challenging the public-interest provision in Policy 1.404, the address-disclosure

requirement, and the abusive-comments restriction in the script read at Board meetings. Soon

afterwards, Plaintiffs moved to preliminarily enjoin Defendants from enforcing those rules. In

support of their motion, Plaintiffs filed declarations from both Dunagan-Price and Lemons

reiterating their experiences as detailed in the Complaint, excerpts of the Board’s rules, and

several recorded videos of school board meetings. The Board subsequently removed all mention

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of the address-disclosure requirement and abusive-comments restriction from its policies and

materials.

In January 2024, the district court denied Plaintiffs’ motion without a hearing, concluding

that Plaintiffs had not demonstrated a likelihood of success on the merits for their challenges to

the public-interest provision, or a likelihood of imminent and irreparable harm from either the

address-disclosure requirement or the abusive-comments restriction. As to the public-interest

provision, the court concluded that Plaintiffs had not demonstrated a likelihood of success

because the provision was susceptible to two plausible readings, one of which the court found

likely to survive First Amendment scrutiny. As for the address-disclosure requirement and

abusive-comments restriction, the court found that there was not a likelihood of irreparable harm

because there was no evidence that Defendants would enforce either abrogated rule while the

case continued. Plaintiffs timely appealed pursuant to our jurisdiction over denials of injunctive

relief. See 28 U.S.C. § 1292(a)(1).

II. ANALYSIS

The First Amendment, applicable to the states through the Fourteenth Amendment,

prohibits the government, including state government entities, from “abridging the freedom of

speech.” U.S. Const. amend. I. When a would-be speaker uses government property as the

platform for her speech, the strength and scope of the First Amendment’s protection depends on

the forum where that speech occurs. Ison v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887,

893 (6th Cir. 2021). For instance, in nonpublic fora like military bases, airport terminals, and

internal mail systems, the government has broad discretion to regulate speech. Int’l Soc’y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678–80 (1992); Cornelius v. NAACP Legal

Def. & Educ. Fund, Inc., 473 U.S. 788, 803–05 (1985); Greer v. Spock, 424 U.S. 828, 835–37

(1976). Regulations in these places need only be reasonable and viewpoint-neutral. Cornelius,

473 U.S. at 806. On the other side of the spectrum are traditional and designated public fora.

Traditional public fora are those like public parks, streets, and other areas “which ‘have

immemorially been held in trust for the use of the public and, time out of mind, have been used

for purposes of assembly, communicating thoughts between citizens, and discussing public

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questions.’” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (quoting Perry Educ.

Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983)). In such places, members of the

public retain “strong free speech rights.” Id. Designated public fora are government properties

that have not traditionally been regarded as public fora but are intentionally made available for

that purpose. Id. In both categories of public fora, the government may impose reasonable

limits on the time, place, and manner of speech, but any other content-based restriction must both

be viewpoint-neutral and satisfy strict scrutiny. Id.

Sitting somewhere on this spectrum between public fora and nonpublic fora are limited

public fora: those created by a government entity for “use by certain groups or dedicated solely

to the discussion of certain subjects.” Id. at 470. In a limited public forum, like a public forum,

the government may regulate speech through content-neutral time, place, and manner

restrictions, so long as those restrictions are narrowly tailored to serve a significant government

interest and leave open ample alternative channels of communication of the information. Lowery

v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427, 432 (6th Cir. 2009). But the government may also

impose content-based restrictions that are both viewpoint-neutral and reasonable in light of the

purposes served by the forum. Ison, 3 F.4th at 893.

In Lowery, we concluded that school board meetings that allot time for public comment

constitute limited public fora. 586 F.3d at 432; see also Ison, 3 F.4th at 893 (same). “While this

type of meeting offers citizens a chance to express their views to the [school] board, it cannot

accommodate the sort of uninhibited, unstructured speech that characterizes a public park.”

Lowery, 586 F.3d at 432. As such, school boards are permitted to set reasonable, viewpoint-

neutral limits on the subject matter of and the process by which members of the public may

provide comment, as well as on the time, place, and manner of said comments. Otherwise,

members of the public would be free to raise idiosyncratic, personal complaints and air irrelevant

grievances—thereby derailing or delaying a school board’s work, frustrating the purpose of the

meeting, and “deny[ing] other citizens the chance to make their voices heard.” Id. at 433. In

short, the First Amendment does not provide a right to commandeer school board meetings.

See id.

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On these basic premises, the parties agree. The parties’ disagreement and Plaintiffs’

claims center on whether the First Amendment prohibits the Board and its Members from

enforcing the public-interest provision, the abrogated address-disclosure requirement, and the

abrogated abusive-comments restriction to ensure its meetings remain orderly and productive.

Our task now does not include conclusively answering these questions. EOG Res., Inc. v. Lucky

Land Mgmt., LLC, 134 F.4th 868, 884 (6th Cir. 2025). Rather, we must evaluate the district

court’s “ultimate conclusion as to whether to grant the preliminary injunction for abuse of

discretion.” O’Toole v. O’Connor, 802 F.3d 783, 788 (6th Cir. 2015) (quoting Platt v. Bd. of

Comm’rs on Grievances & Discipline of Ohio Sup. Ct., 769 F.3d 447, 454 (6th Cir. 2014)).

A. Preliminary Injunction

“A preliminary injunction is ‘an extraordinary remedy.’” L.W. ex rel. Williams v.

Skrmetti, 83 F.4th 460, 470–71 (6th Cir. 2023) (quoting Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008)). It is “never awarded as of right,” A.C.L.U. Fund of Mich. v. Livingston

County, 796 F.3d 636, 642 (6th Cir. 2015) (quoting Platt, 769 F.3d at 453), and “[t]he party

seeking a preliminary injunction bears the burden of justifying such relief[,]” id. (quoting

McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012)). To qualify, a plaintiff must “establish that

[s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips in [her] favor, and that an

injunction is in the public interest.” Winter, 555 U.S. at 20. When assessing an appeal of a

preliminary injunction decision involving the First Amendment, we “review the District Court’s

legal rulings de novo (including its First Amendment conclusion), and its ultimate conclusion as

to whether to grant the preliminary injunction for abuse of discretion.” O’Toole, 802 F.3d at 788

(quoting Platt, 769 F.3d at 454). We review the district court’s factual findings for clear error.

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

1. Standing and a Likelihood of Success on the Merits

Standing is a jurisdictional requirement grounded in Article III of the Constitution that

“‘ensure[s] that federal courts do not exceed their authority’ and ‘limits the category of litigants

empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.’” State ex rel.

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et al. v. Wilson Cnty. Bd. of Educ., et al.

Tenn. Gen. Assembly v. U.S. Dep’t of State, 931 F.3d 499, 507 (6th Cir. 2019) (quoting Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016)). To establish Article III standing, a plaintiff must

demonstrate (1) an injury in fact that is (2) caused by the defendant’s conduct and (3) redressable

by a favorable court decision. Susan B. Anthony List v. Driehaus¸ 573 U.S. 149, 157–58 (2014).

Plaintiffs “bear[] the burden of establishing these elements . . . with the manner and degree of

evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). “At the preliminary injunction stage, then, [each] plaintiff must make a ‘clear

showing’ [through evidence] that she is ‘likely’ to establish each element of standing.” Murthy

v. Missouri, 603 U.S. 43, 58 (2024) (quoting Winter, 555 U.S. at 22); see also Memphis A.

Phillip Randolph Inst. v. Hargett, 978 F.3d 378, 391–92 (6th Cir. 2020) (requiring court to

consider the full record before it when ruling on a preliminary injunction). And because

“standing is not dispensed in gross,” each plaintiff “must demonstrate standing for each claim

that [she] presses . . .” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021).

Where, on an appeal of an order on preliminary injunction, a party’s standing to bring

particular claims appears dubious, our review of the propriety of the district court’s order—at

least with regard to those claims—may begin and end there. See Murthy, 603 U.S. at 56. This is

because standing analysis, though not an inquiry into a claim’s merits, is still “relevant to [the]

likelihood of success [on the merits]” inquiry, Arizona v. Biden, 40 F.4th 375, 383 (6th. Cir.

2022). “This stands to reason because an ‘affirmative burden of showing a likelihood of success

on the merits . . . necessarily includes a likelihood of the court's reaching the merits, which in

turn depends on a likelihood that [the] plaintiff has standing.’” Waskul v. Washtenaw Cnty.

Cmty. Mental Health, 900 F.3d 250, 255–56 n.4 (6th Cir. 2018) (quoting Nat’l Wildlife Fed’n v.

Burford, 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring in part)). Thus, “[a] party

who fails to show a ‘substantial likelihood’ of standing is not entitled to a preliminary

injunction.” Id. (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir.

2015)). Accordingly, we must determine whether Plaintiffs have demonstrated standing to seek

a preliminary injunction. See Murthy, 603 U.S. at 58.

Plaintiffs seek injunctive relief, so our analysis focuses on the claims challenging future

enforcement of each provision. An alleged injury is constitutionally sufficient only if it is

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“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Driehaus, 573 U.S. at 158

(quoting Lujan, 504 U.S. at 560). The Supreme Court has explained that the threat of

enforcement is “sufficiently imminent” to constitute an injury-in-fact if a plaintiff alleges that

she is “subject to such a threat,” meaning that: (1) she intends “to engage in a course of conduct

arguably affected with a constitutional interest,” (2) this conduct is arguably “proscribed by a

statute,” and (3) that there is “a credible threat” of the statute’s enforcement against the

plaintiff. Id. at 158–59 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).

Plaintiffs aver that they intend to continue speaking before the Board on topics related to

its administration of Wilson County schools without tempering their strongest criticisms or

disclosing their addresses. As described above, Plaintiffs retain First Amendment rights when

providing public comment at a school board meeting, see, e.g., Lowery, 586 F.3d at 432, so their

intended conduct is no doubt affected with a constitutional interest. And that conduct is certainly

proscribed by the address-disclosure requirement and may well be proscribed by the public-

interest provision and abusive-comments restriction depending on how the two provisions are

interpreted. The third requirement of a pre-enforcement injury-in-fact, that there is a credible

threat of enforcement against Plaintiffs, warrants further discussion.

To demonstrate a credible threat of enforcement, a plaintiff need not expose herself to

actual arrest or prosecution. Christian Healthcare Ctrs. Inc. v. Nessel, 117 F.4th 826, 848 (6th.

Cir. 2024). A credible threat of enforcement may be established at the preliminary injunction

stage through evidence of subjective chill and some combination of several factors: (1) “a

history of past enforcement against the plaintiffs or others”; (2) “enforcement warning letters

sent to the plaintiffs regarding their specific conduct”; (3) “an attribute of the challenged statute

that makes enforcement easier or more likely, such as a provision allowing any member of the

public to initiate an enforcement action”; and (4) “a defendant’s refusal to disavow enforcement

of the challenged statute against a particular plaintiff.” McKay v. Federspiel, 823 F.3d 862, 869

(6th Cir. 2016). Each factor need not be established, nor is the list exhaustive. Online Merchs.

Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021); see also Fischer v. Thomas, 52 F.4th 303,

307 (6th Cir. 2022) (per curiam) (noting that the McKay factors are not “a laundry list”). The

relevant question is whether “surrounding factual circumstances” plausibly suggest a credible

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fear of enforcement. Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021,

1034 (6th Cir. 2022).

We begin with the public-interest provision. The provision applies only to the third

avenue through which individuals may address the Board; it is not the only—or even the first—

means of providing public comment at school board meetings. Would-be speakers may be added

to the agenda under Policy 1.404’s first avenue by submitting a written request to the Director of

Schools’ office ten working days before the scheduled meeting. After the agenda is set,

individuals may pursue the second avenue by signing up prior to the meeting to address agenda

items. Thus, the third avenue serves as a safety net to ensure that those who failed to employ the

first two avenues have an opportunity to speak. Any credible threat of enforcement of the

public-interest provision arises only in this limited circumstance.

The Complaint contains a single explicit reference to the public-interest provision. But

that reference merely describes the provision as part of a larger explanation of how Policy 1.404

provides three avenues to address the Board. Later in the Complaint, Plaintiffs allege that

“[Lemons] contacted Defendant Padilla for permission to speak on a non-agenda item. Padilla

granted her request.” R. 1, Compl., PageID 12. This allegation, however, does not assert that

Padilla considered whether Lemons’s remarks were “in the public interest” before permitting her

to speak. Nor does it suggest that Lemons altered her speech to secure Padilla’s permission to

speak at the October 2022 Board meeting. Indeed, it does not suggest that Padilla knew the

viewpoint or even the subject matter of Lemons’s intended remarks.

These allegations, moreover, are not supported by record evidence. The Plaintiffs

submitted Policy 1.404 as an exhibit, but did not reference the public-interest rule in either of the

declarations submitted. And Lemons’s declaration does not mention Padilla or suggest that he or

any Board member scrutinized the substance of her comments pursuant to the public-interest

provision before permitting Lemons to speak. With no evidence supporting Plaintiffs’ limited

allegations, we turn to whether they adequately demonstrated subjective chill and surrounding

factual circumstances supporting a credible threat of enforcement.

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Begin with subjective chill. The record does not suggest that a single person—let alone

Lemons, Dunagan-Price, or any other member of the Wilson County Chapter—has altered her

speech or that her speech has been deterred based on the public-interest provision. And,

although the record contains several assertions about the impact of the Board’s alleged

censorship, including that Lemons, Dunagan-Price, and other Wilson County Chapter members

have self-censored out of apprehension that the Board might cut them off before they can

provide their full remarks, that described chill is squarely attributed to the potential enforcement

of the other two challenged provisions, not the public-interest provision. Plaintiffs, therefore,

have not made this “first and most important” showing to establish a credible threat of

enforcement. Fischer, 52 F.4th at 307.

The dearth of relevant evidence affects our analysis of the credible threat factors as well.

The record lacks any indication that: (1) the Board has ever enforced the public-interest

provision to prohibit a member of the public from providing comments at a school board

meeting; (2) Plaintiffs have ever received a warning letter or were otherwise warned that their

remarks to the Board had to be “in the public interest”; (3) non-Board Members or the public can

initiate an enforcement action; or (4) any Board member has ever been asked to—let alone

refused to—disavow enforcement of the challenged statute against any Plaintiff. Plaintiffs have

not adequately demonstrated any factor delineated by our caselaw. And, although the record

indicates that Lemons, Dunagan-Price, and other members of the Wilson County Chapter intend

to speak at future school board meetings, it contains little evidence that any person is required or

likely to do so by requesting the Chair or another Board Member to recognize her to address a

non-agenda item. Policy 1.404 contains two other avenues to address the Board—by either

submitting a timely written request to have remarks added to a meeting’s agenda or requesting to

address an agenda item. Because neither avenue is affected by the public-interest provision, we

can only speculate on the likelihood that a single member of the Wilson County Chapter might

be subject to the provision. And, even then, the record contains no suggestion that the provision

might be enforced. Thus, the “surrounding factual circumstances” do not suggest a credible

threat of enforcement. Universal Life Church Monastery Storehouse, 35 F.4th at 1034.

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Plaintiffs ground their standing argument in the Supreme Court’s caselaw involving

challenges to municipal permitting regimes. Oral Arg Tr. at 44, 46 (citing Forsyth County v.

Nationalist Movement, 505 U.S. 123 (1992)). In Forsyth County, before hosting a rally, the

plaintiffs had to go through the county’s permitting regime and pay a fee, 505 U.S. at 126, which

they alleged was set arbitrarily, id. at 130. Because the plaintiffs had planned a rally, the court

held they were subject to that regime and had standing to challenge it. Id. at 125. Analogizing to

Forsyth County, Plaintiffs argue that because they are planning to speak to the Board, they are

subject to the allegedly arbitrary public-interest provision and have suffered injury.

But Forsyth County does not help Plaintiffs here because they have not asserted that their

speech will be subject to the public-interest provision. Plaintiffs enjoy multiple avenues to speak

at Board meetings, and only one avenue involves the public-interest provision. Plaintiffs have

neither alleged nor adduced facts indicating that they have used or intend to use that avenue.

Moreover, they have neither alleged nor adduced facts indicating that, if they were to use that

avenue, the Board would try to enforce the public-interest provision. So, Forsyth County does

not rescue Plaintiffs’ challenge to the public-interest provision.

Without demonstrating a credible threat of enforcement of the public-interest provision,

Plaintiffs have not made a clear showing that they are likely to establish an Article III pre-

enforcement injury. See Murthy, 603 U.S. at 58 (quoting Winter 555 U.S. at 22). And, by failing

to adequately demonstrate standing, Plaintiffs necessarily cannot establish a likelihood of success

on the merits of their prospective claims challenging the public-interest provision—a

requirement for preliminary injunctive relief. Biden, 40 F.4th at 387.

Plaintiffs’ challenges to the address-disclosure requirement and the abusive-comments

restriction are more particularly pleaded and established in the record. Plaintiffs explicitly

averred that both rules have deterred Lemons, Dunagan-Price, and other Wilson County Chapter

members from sharing their complete and honest opinions with the Board out of confusion over

the rules’ scope, out of fear of reprisal by members of the public who might disagree, or out of

concern that the Board will publicly cut them off. These assertions of subjective chill are

accompanied by additional evidence that our precedent has held suggests a credible threat of

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enforcement. For one, the record establishes that the Board enforced the address-disclosure

requirement against Lemons on October 3, 2022, indicating Defendants’ history of enforcing the

rule against a plaintiff. The record also demonstrates that at the beginning of each public

comment period the Chair reads from a script containing both rules and asks each speaker if he

or she would like the script to be read again before addressing the Board. This script constitutes

a warning to each would-be speaker that the Board is prepared to enforce the stated rules if they

are violated. Taken together, this evidence suggests the credible threat of enforcement that is

required to demonstrate an Article III injury.

Plaintiffs have offered evidence clearly showing a likely causal connection between their

prospective injury and the two rules and also that enjoining the rules is substantially likely to

remedy that injury. We conclude that Plaintiffs have sufficiently established standing to

preliminarily enjoin the address-disclosure requirement and the abusive-comments restriction.

Thus, we affirm the district’s court denial of Plaintiffs’ motion to preliminarily enjoin the

public-interest provision and proceed to the merits of their motion to preliminarily enjoin the

other two rules.1

2. The Merits of Plaintiffs’ Motion

Preliminary injunctions in constitutional cases often turn on the likelihood of success on

the merits of the plaintiffs’ claims. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).

But this general rule does not do away with the “indispensable” prerequisite of showing a

likelihood of immediate and irreparable harm. D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 326–27

(6th Cir. 2019). Of course, “[t]he loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.” Bays v. City of Fairborn, 668 F.3d 814,

825 (6th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). A plaintiff, however,

must also show that the alleged harm is “likely, not remediable at final judgment, and

immediate.” Fischer v. Thomas, 78 F.4th 864, 868 (6th Cir. 2023). “[E]ven the strongest

1

Our standing inquiry here is limited to Plaintiffs’ standing to seek a preliminary injunction. As did the

district court in Murthy after the Supreme Court’s remand, the district court here should evaluate its continuing

jurisdiction over Plaintiffs’ suspect claims. See generally Missouri v. Biden, No. 3:22-CV-01213, 2024 WL

5316601, at *1 (W.D. La. Nov. 8, 2024) (order).

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showing on the other three factors cannot ‘eliminate the irreparable harm requirement.’” Sumner

Cnty. Schs., 942 F.3d at 326–27 (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679

F.2d 100, 105 (6th Cir. 1982)). After all, “[i]f the plaintiff isn’t facing imminent and irreparable

injury, there’s no need to grant relief now as opposed to at the end of the lawsuit.” Id. at 327.

To make the requisite showings, Plaintiffs submitted declarations from Lemons and

Dunagan-Price. Plaintiffs also filed a copy of Policy 1.404 and the related Policy 1.400, and

videos of eleven Board meetings that either Lemons or Dunagan-Price attended or watched

remotely in 2022. In their declarations, Lemons and Dunagan-Price reaffirmed the allegations

contained in the Complaint, asserted that the Board’s Chair rarely enforced the address-

disclosure rule in the meetings they attended in 2022, and averred that they and other Wilson

County Chapter members remain fearful of addressing the Board based on the two rules.

In response, Defendants offered evidence demonstrating that the Board had amended the

script that the Chair reads at meetings to remove any reference to either the address-disclosure

requirement or the abusive-comments restriction. And, prior to the district court issuing its

ruling, Defendants filed supplemental briefing, which included evidence of a revised Policy

1.404 that no longer contained the address-disclosure requirement, along with agendas of the

Board meeting where the changes were officially adopted. Plaintiffs conceded that the Chair’s

script and Policy 1.404 had been amended to remove the challenged rules but argued that the

changes did not moot the case.

As the district court observed, Defendants had removed all references to both rules from

all Board policies and materials, and Plaintiffs offered no evidence that Defendants would

enforce either abrogated rule while the case continued. Based on this record, the court concluded

that Plaintiffs had failed to prove a likelihood of imminent and irreparable harm. The court then

addressed Plaintiffs’ mootness argument, explaining that the Defendants’ voluntary cessation of

the two rules could affect its analysis on whether to grant preliminary injunctive relief without

necessarily mooting Plaintiffs’ claims. On these grounds alone, the court denied Plaintiffs’

request to enjoin either rule.

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On appeal, Plaintiffs first argue that the Board’s voluntary cessation of the two rules was

insufficient to moot the request for a preliminary injunction. But the district court did not

consider, let alone conclude, that Plaintiffs’ challenges to the address-disclosure requirement and

abusive-comments restriction were moot. It explicitly disclaimed that approach. Rather, the

court asked whether Defendants’ actions voluntarily abrogating the two rules meant that there

was no longer a need to grant immediate relief as opposed to granting relief at the end of the

lawsuit. A court is “well within its province” to deny a preliminary injunction “based solely on

the lack of an irreparable injury.” Sumner Cnty. Schs., 942 F.3d at 327 (citation omitted).

Next, Plaintiffs contend that the likelihood of success on the merits of their challenges

should dictate the outcome of their preliminary injunction motion without regard to the

likelihood of imminent and irreparable harm. Of course, the loss of First Amendment freedoms

constitutes irreparable harm. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)

(quoting Elrod, 427 U.S. at 373). Even so, if a litigant seeking a preliminary injunction cannot

show that the injury is likely, then she has not demonstrated a likelihood of irreparable harm.

Winter, 555 U.S. at 20. She has only shown speculative or potential harm. And a “possibility”

of harm does not entitle Plaintiffs to a preliminary injunction. Id. at 22. Indeed, it is well-

established that even if Plaintiffs present a winning case on the merits, they must show that,

absent the court’s intervention, the challenged provisions are likely to be applied to them while

the case proceeds. See, e.g., Sumner Cnty. Schs., 942 F.3d at 327–28. This is an “indispensable”

prerequisite to any preliminary injunction. Id. at 327.

It is also unlikely the Board will reinstate the rules. For one, the Board rescinded the

rules over two years ago and has not reinstated them since. For another, the Board’s attorney at

oral argument committed that Board will not reinstitute the challenged rules during the pendency

of the litigation. Such a representation binds the Board. See Borror Prop. Mgmt., LLC v. Oro

Karric N., LLC, 979 F.3d 491, 495 (6th Cir. 2020) (“Once litigation commences, a party is

typically bound by its action,” including “an argument to the court by its counsel.”); see also

Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962). Thus, between the Board’s removal of the

rules, the fact they have not been reinstated in over two years, and the commitments by

Defendants’ counsel that his client will not reinstate them, Plaintiffs cannot show a “likely”

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threat of irreparable harm before a final decision on the merits. That ends their quest for a

preliminary injunction. After all, the purpose of a preliminary injunction is “simply to preserve

the status quo” during the litigation process. United States v. Edward Rose & Sons, 384 F.3d

258, 261 (6th Cir. 2004).

In response, Plaintiffs point to Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S.

14 (2020) (per curiam), and Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019). In

Roman Catholic Diocese of Brooklyn, the Supreme Court considered the Governor of New

York’s restrictions on attendance at religious services in areas classified as “red” or “orange”

zones during the Covid-19 pandemic. 592 U.S. at 15–16. It determined that the Governor’s

reclassification by executive order of areas where the plaintiffs worshipped after the emergency

appeal reached the Supreme Court did not undercut the plaintiffs’ ability to demonstrate

irreparable harm. Id. at 20. As the Court explained, a preliminary injunction was “still called

for” because the plaintiffs “remain[ed] under a constant threat that the area in question w[ould]

be reclassified as red or orange.” Id. Crucially, Governor Cuomo had not dismantled his

classification system, had not lessened the restrictions on red or orange zones, and had “regularly

change[d] the classification of particular areas without prior notice.” Id.; see also id. at 20 n.3

(noting eight times the Governor reclassified areas without prior notice between October 21,

2020, and November 23, 2020). These findings formed the basis of the Court’s determination

that the plaintiffs demonstrated a likelihood of imminent and irreparable harm. See id.

The threat of irreparable harm was far greater in Roman Catholic Diocese than here.

While Governor Cuomo had changed the classification of particular areas eight times in little

over a month, the Board changed the challenged policies one time before removing them entirely

over two years ago. And the Board has represented to this court that it will not reinstate them

during the litigation. Plaintiffs argue that the Board still can—and does—readily change its

policies. But the fact that the Board can change its other policies does not take this case into the

ambit of Roman Catholic Diocese. Here, the challenged policies have laid dormant for over two

years, and the Board is bound by its counsel’s representations.

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Speech First addressed a situation in which the district court had based its denial of a

preliminary injunction on the plaintiff’s likelihood of success on the merits prong of the

preliminary injunction analysis. 939 F.3d at 763, 767. There, we considered whether the district

court properly concluded that there was no likelihood of success based on mootness after the

defendant voluntarily removed the challenged definitions for “bullying” and “harassing” from its

code of conduct. Id. at 761–62. We concluded that the case was not moot and, therefore,

vacated the decision and remanded the case for the district court “to consider in the first instance

Speech First’s likelihood of success.” Id. at 765, 767, 770.

But Speech First did not resolve whether or to what extent the defendant’s voluntary

cessation affected the district court’s analysis of the likelihood of imminent and irreparable harm.

Id. To be sure, the court did suggest that “[e]ven if the other three [preliminary injunction]

factors weigh against a preliminary injunction, the district court may still grant one if it

determines that . . . Speech First does have a strong likelihood of success.” Id. at 770. But this

line was not part of the court’s holding: The Speech First court did not “consider[] the issue and

consciously reach[] a conclusion” about whether the defendants’ voluntary cessation affected the

irreparable-harm requirement. Wright v. Spaulding, 939 F.3d 695, 702 (6th Cir. 2019). All the

court decided was that the case was not moot and the plaintiffs had standing and, therefore,

remanded the case so the district court could reconsider the preliminary injunction factors.

Speech First, 939 F.3d at 770. The court’s single line about the district court’s possible calculus

on remand did “nothing to determine the outcome” of the case at issue—in other words, it was

“dictum” with “no binding force.” Wright, 939 F.3d at 701. What’s more, this court fully

considered the irreparable-harm requirement in Sumner County Schools, finding it

“indispensable.” 942 F.3d at 327. So, Speech First does not alter our analysis.

Plaintiffs’ only remaining argument suggests that there is an “ongoing threat” of

irreparable harm because “[t]he Board’s historical practice of threatening to enforce non-existent

rules and discriminatorily enforcing the rules that actually exist chills Plaintiffs’ protected

speech.” Presumably, by “non-existent rules,” Plaintiffs refer to the abusive-comments

restriction, which was omitted from Policy 1.404 but had been included in prior iterations of the

Chair’s script. But, again, because two years have passed, the Board has not reinstated either

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requirement, and the Board has told us they will keep it that way during the litigation, Plaintiffs

have not shown that irreparable harm is likely.

The address-disclosure requirement and abusive-comments restriction are no longer

operative, and Plaintiffs offer no evidence indicating that either might be reinstituted and applied

in the future. At bottom, Plaintiffs fail to establish a likelihood of imminent and irreparable harm

from either challenged rule for which they have standing and, therefore, have failed to carry “the

burden of justifying [preliminary injunctive] relief.” A.C.L.U. Fund of Mich., 796 F.3d at 642

(quoting McNeilly, 684 F.3d at 615).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Plaintiffs’ motion

for a preliminary injunction and REMAND for further proceedings consistent with this opinion.

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_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring. For parents, few things matter more than their

children’s education. But when a group of moms began voicing concerns to their local

Tennessee school board, they discovered that their input wasn’t welcome. They now challenge

the set of policies that restricted the tone, content, and format of their remarks. While I agree

with the majority that the moms are not entitled to a preliminary injunction, I write separately to

emphasize the troubling nature of the Board’s rules.

Start with the Board’s policy of cutting off “abusive” comments. The Board offers no

guidance to distinguish “abusive” comments from critical or insulting ones. See Compl. at 7, R.

1, Pg. ID 7. That distinction matters because the First Amendment prevents the government

from discriminating against a speaker based on her viewpoint—regardless of whether that view

is offensive or polite. Matal v. Tam, 582 U.S. 218, 243 (2017) (plurality opinion); Iancu v.

Brunetti, 588 U.S. 388, 396 (2019). When the Board bars offensive remarks but not flattering

ones, it necessarily picks and chooses between opposing perspectives. This act of selection

arguably makes the abusive-speech restriction an “egregious form of content discrimination” that

is “presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 828–29 (1995). Put another way, the Board can’t implement the equivalent of a “happy-

talk” requirement that forces speakers to make their remarks “grammatically palatable to the

most squeamish among us.” Matal, 582 U.S. at 246; Cohen v. California, 403 U.S. 15, 25

(1971). In a free society, after all, the listener—not the government—decides whether remarks

are worthwhile. And the price of that freedom is often unkind, offensive, or insulting speech.

Restrictions on this freedom aren’t just unwise—they’re usually unconstitutional. Our

court has repeatedly held that “happy-talk” requirements like the Board’s abusive-speech

restriction cross the constitutional line. For instance, we have found a city council’s policy

barring “attacks on people or institutions . . . could be construed as viewpoint discrimination.”

Youkhanna v. City of Sterling Heights, 934 F.3d 508, 520 (6th Cir. 2019). Elsewhere, we

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invalidated a prohibition on advertisements likely to invite “scorn or ridicule,” reasoning that the

restriction necessarily discriminated “between two opposed sets of ideas.” Am. Freedom Def.

Initiative v. Suburban Mobility Auth. for Reg’l Transp., 978 F.3d 481, 500 (6th Cir. 2020)

(citation omitted). And most recently, we struck down a school board’s policy barring

“antagonistic,” “abusive,” and “personally directed” comments because it discriminated against

speech that “opposes, or offends, the Board or members of the public.” Ison v. Madison Loc.

Sch. Dist. Bd. of Educ., 3 F.4th 887, 895 (6th Cir. 2021). Our rule is simple: “the government

may not censor speech merely because it is ‘offensive to some.’” Id. at 894 (citation omitted).

But the Board’s abusive-speech restriction appears to do just that.

The Board’s requirement that speakers announce their home addresses at the beginning of

their remarks is little better. Policies that fall short of a direct prohibition on First Amendment

expression may nevertheless amount to a constitutional violation when they “deter[]” or “chill[]”

speech. Laird v. Tatum, 408 U.S. 1, 11 (1972); see also Virginia v. Am. Booksellers Ass’n, 484

U.S. 383, 393 (1988) (“[T]he alleged danger of this statute is, in large measure, one of self-

censorship.”). Forcing commenters to disclose their home addresses before speaking on

controversial or hot-button issues seems particularly likely to silence a would-be speaker. See

Marshall v. Amuso, 571 F. Supp. 3d 412, 426 (E.D. Pa. 2021). And the Board seemed aware of

this chilling effect: After permitting some commenters to proceed without disclosing their

addresses, it appears to have enforced the requirement midway through a controversial comment,

precisely because it was likely to deter the speaker.

The Board’s policy that unplanned speeches must be “in the public interest” presents

additional constitutional infirmities. In a limited public forum, the government “must be able to

articulate some sensible basis for distinguishing what [speech] may come in from what must stay

out.” Minn. Voters All. v. Mansky, 585 U.S. 1, 16 (2018). But the Board’s requirement that

speech be “in the public interest” doesn’t meet this standard. Who, after all, is the relevant

“public,” and what’s in their “interest?” Without answers to these basic questions, the policy

invites “a virtually open-ended interpretation” and lacks “objective, workable standards” to guide

its application. Id. at 21. While the Board could certainly limit speech to school-related matters,

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the public-interest rule seems like a textbook “opportunity for abuse.” Id. (quoting Bd. of Airport

Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987)).

If Plaintiffs can establish standing to challenge the public-interest provision, their

arguments may carry weight. In similar cases, our sister circuits have struck down rules barring

speech that is “off-topic,” concerns “public issues,” or implicates “matters of public debate.”

PETA v. Tabak, 109 F.4th 627, 630 (D.C. Cir. 2024); White Coat Waste Project v. Greater

Richmond Transit Co., 35 F.4th 179, 188 (4th Cir. 2022); Ctr. for Investigative Reporting v. Se.

Pa. Transp. Auth., 975 F.3d 300, 309 (3d Cir. 2020). These courts uniformly found the standards

at issue “not . . . capable of reasoned application” because their interpretation and application

depended on the government’s say-so. Mansky, 585 U.S. at 23. Indeed, Moms for Liberty has

elsewhere prevailed on a challenge to a school board’s policies barring comments that were

“personally directed” on this exact theory. Moms for Liberty - Brevard Cnty. v. Brevard Pub.

Sch., 118 F.4th 1324, 1328 (11th Cir. 2024). It is difficult to see daylight between those

unconstitutional policies and the Board’s.

At bottom, there’s a difference between a limited public forum and an unduly restrictive

one. At a time when many parents are disengaging from public education, those parents who put

in the effort to advocate for the wellbeing of their children—and their neighbors’ children—

should be celebrated, not silenced. The Board should have sought out the exact kind of content it

censored: critical comments that flag problems and suggest improvements. It was never required

to force commenters to announce their home addresses, restrict the tenor or topic of their

remarks, or curtail impromptu speeches on any subject. These efforts to limit parents’ input into

their children’s education reflect the Board’s judgment about the type of feedback that it values.

And that choice speaks volumes. After all, what’s the point of the meeting if only positive

comments are welcome? The First Amendment protects the critic and the champion equally for

a reason.

Plaintiffs fall short of the demanding standard for interim relief because the Board has not

applied its suspect rules in over two years and has promised to keep it that way during litigation.

But if the Board reinstated its policies or indicated that it would, Plaintiffs would be well-

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positioned to seek a temporary restraining order for prompt relief. And if Plaintiffs can establish

standing, their allegations that the Board’s remaining policies impermissibly chill protected

speech deserve close consideration.