The opinion
Case: 25-30325 Document: 88-1 Page: 1 Date Filed: 06/25/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 25, 2026
No. 25-30325
Lyle W. Cayce
____________
Clerk
Weston Merriott,
Plaintiff—Appellant,
versus
City of Bossier City; Jeffrey Free, In his official & individual
capacities; David A. Montgomery, In his official & individual
capacities; Jeffery Darby; Charles Jacobs, in his official capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:23-CV-1421
______________________________
Before Clement, Douglas, and Ramirez, Circuit Judges.
Irma Carrillo Ramirez, Circuit Judge:
Weston Merriott challenges the dismissal of his complaint, in which
he alleges that a policy passed by the City Council of Bossier City, Louisiana,
to regulate speech at its meetings violates the First Amendment as well as
Louisiana law. We AFFIRM in part and REVERSE in part.
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I
A
Merriott is an online journalist who resides in Bossier Parish,
Louisiana. In 2023, he “began following a community movement petitioning
for term limits for” Bossier City’s elected officials. Because the petition was
“on the agenda for discussion,” Merriott attended a City Council meeting
on July 18, 2023. At the start of the meeting, the City Clerk read the following
provision from the “rules of ‘Decorum: Members of the Public Addressing
the Council’”:
Council in accordance with Louisiana Open Meetings Laws
and the adopted Bossier City Council meeting rules resolution.
The City Council asks for order and decorum at our meetings.
Please silence your cell phones. Anyone wishing to address the
Council on any agenda item may approach and state their name
and address for the record and shall be permitted three minutes
to make their comments on the particular item that’s up for
discussion, with up to four speakers per side. All other
audience members are asked to please observe the meeting
quietly and if there is a need for audience members to hold a
conversation or take a phone call you’re asked to please step
out of the meeting. City Council appointed Sergeant at Arms
have been instructed to maintain decorum and ask anyone in
violation to step out of the meeting in [] order to maintain
orderly conduct of the meeting.
During the public comment period at the meeting, Merriott spoke about “the
importance of following the will of the people and not delaying the
implementation of the term limit[s] petition.”
The term limits petition was on the agenda for a City Council meeting
on August 1, 2023. Merriott attended and “criticized the decision of some
councilmembers to delay action on the petition by seeking outside counsel”
2
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and “questioned the impartiality of the outside counsel, noting that outside
counsel” had previously represented Councilmember David Montgomery in
a deposition “years prior.” Montgomery and Councilmember Jeffrey Free
“interrupted” Merriott, and Free “instructed” Merriott to “stay on topic.”
Montgomery “requested that [City Attorney Charles] Jacobs respond” to
the comments, and the City Attorney said that Merriott’s comments were
“absolutely false.”
On August 15, 2023, the City Council convened again. The City Clerk
started the meeting as usual but read aloud the following: “Any person
making personal, impertinent or slanderous remarks or who shall become
boisterous while addressing the Council shall be forthwith, by the President
Pro-tem, barred from further audience before the Council unless permission
to continue by [sic] granted by a majority vote of the Council” (the
“Policy”). The City Clerk continued:
All remarks shall be addressed to the Council as a body and not
to any member thereof. No questions shall be asked a [sic]
Council person or the mayor except through the meeting chair.
All other audience members are asked to please observe the
meeting quietly. City Council appointed Sergeant at Arms have
been instructed to maintain decorum and ask anyone in
violation to step out of the meeting.
Merriott again “criticiz[ed] the Council for failing to listen to the Mayor and
the citizens.” Free and Councilmember Jeffrey Darby “interrupted” him,
and Free “instructed [Merriott] to stay on topic and to only ask questions.”
Darby “instructed the [C]ity [C]lerk to read their procedures” again to
Merriott, and she complied.
On August 20, 2023, Merriott “sent a letter” to the City Council, the
City Attorney, and the Mayor, “requesting that the Council respect
[Merriott’s] First Amendment Rights and refrain from interrupting him.”
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The agenda for a City Council meeting on September 5, 2023,
included an item to “[a]dopt a [r]esolution authorizing the City Attorney to
take legal action to determine the validity of the certification of the petition
of the Bossier Term Limits Coalition.” Merriott attended and “questioned
why it was necessary . . . to determine the validity of the petition when [the
City Council] already had [an] opinion from private counsel.” He “also
raised concerns about the impartiality of the outside counsel” who had
previously represented Montgomery. Montgomery “interrupted” and asked
Free to have Merriott “removed.” Merriott “asked that . . . Montgomery let
him finish.” Montgomery claimed that Merriott’s statement “had nothing
to do with the agenda item” and called again for Merriott’s “removal.” Free
allowed Merriott to “conclude[] his remarks” but “instructed [him] to stick
to the agenda and to not make any accusations against councilmembers.” 1
“[A] secret meeting of some councilmembers occurred directly after
the September 5 City Council meeting.” “[A] local news outlet” released an
audio recording of the meeting, which captured Darby and Montgomery
“speak[ing] about changing the rules of public comment to limit comment to
the beginning of the meeting.” “Darby then asked [the City Clerk] to draft
new rules that would eliminate public comment at each agenda item.”
“Darby and Montgomery counted if they would have enough members to
make the resolution in . . . Free’s absence.” “Montgomery asked: ‘Jeffrey
Free won’t be here, so is [four] to [two] enough?’” The City Clerk
“answered yes.” After the audio recording was released, the City Attorney
“attempted to silence the City Council and employees” by “threaten[ing] to
call the FBI to bring wiretapping charges against the person who released the
_____________________
1
The September 5 meeting minutes stated that Merriott “became disruptive in his
remarks.” Merriott “objected” to this characterization at the next meeting, but the City
Council unanimously voted to approve the minutes without revision.
4
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audio.” Three days later, on September 8, the City Attorney emailed the City
Council, stating “that he had begun an internal investigation related to the
events occurring in the [C]ity [C]ouncil offices after the Council meeting.”
The City Attorney “instructed that there should not be any discussion about
the events without including himself or the [A]ssistant [C]ity [A]ttorney.”
Meanwhile, Merriott filed “an open meetings complaint with the
Louisiana Attorney General concerning his treatment by the City Council
and the Council’s subsequent closed meeting.” The City Attorney
responded to the Louisiana Attorney General in a letter “confirm[ing]” that
Montgomery “threatened” Merriott “with removal” at the September 5
meeting “because [Merriott’s] comments allegedly violated the City Council
rules.” The letter also confirmed that Montgomery, Maggio, Darby, and
Willams “met directly after the Council meeting” to “chang[e] the public
comment rules to limit public comments at meetings in reaction to Merriott’s
comments.”
B
Merriott sued Bossier City, the City Attorney in his official capacity,
and Councilmembers Free, Montgomery, and Darby in their individual and
official capacities, under 42 U.S.C. § 1983 and the Louisiana Open Meetings
Law. Merriott alleges: (1) the Policy is facially overbroad under the First
Amendment; (2) the Policy is facially void for vagueness under the
Fourteenth Amendment; (3) the Policy is facially an impermissible
viewpoint- and content-based restriction under the First Amendment;
(4) the Policy violates the First Amendment as applied to him under Monell;
(5) the City Council violated the First Amendment by retaliating against him
5
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under Monell; (6) Free, Montgomery, and Darby violated the Louisiana Open
Meetings Law; and (7) Appellees violated the state Constitution. 2
Appellees moved to dismiss Merriott’s complaint under Rule
12(b)(6). The district court granted the motion and ultimately dismissed all
of Merriott’s claims. 3
II
This appeal arises from a Rule 12(b)(6) dismissal, which the court
reviews de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). The same standard applies to the constitutionality of an
enactment. Garner v. U.S. Dep’t of Lab., 221 F.3d 822, 825 (5th Cir. 2000).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter which, when taken as true, states ‘a claim to relief that is plausible on
its face.’” Brown v. Taylor, 911 F.3d 235, 242 (5th Cir. 2018) (per curiam)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing
a complaint, “we take all factual allegations as true and construe the facts in
_____________________
2
Merriott also claimed that the Policy’s provisions limiting the number of speakers
on a topic and banning violators from all future meetings were unconstitutional, and that
the City Attorney violated the First Amendment by issuing a “Gag Order” silencing
conversation about the “secret meeting” on September 5.
3
Near the end of the proceedings in the district court, the City Council repealed
and reenacted the Policy. The new version was the same, except that it barred an individual
who violated the Policy “during that meeting” without exception. Merriott’s live
complaint challenged the repealed version of the Policy, which was enforced against him.
Because the parties do not dispute that both versions are substantively the same for
purposes of this case, the parties appear to agree that this court should review the current
version. See Clarke v. Commodity Futures Trading Comm’n, 74 F.4th 627, 636 (5th Cir.
2023).
6
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the light most favorable to the plaintiff.” Kelly v. Nichamoff, 868 F.3d 371, 374
(5th Cir. 2017).
III
Merriott first argues that he plausibly alleged that the policy is facially
overbroad.
“First Amendment overbreadth challenges ‘are allowed not primarily
for the benefit of the litigant, but for the benefit of society—to prevent the
policy from chilling the First Amendment rights of other parties not before
the court.’” Lowery v. Mills, 157 F.4th 729, 745 (5th Cir. 2025) (citation
modified) (quoting Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 958 (1984)). Unlike typical facial challenges, “a law may be invalidated
as overbroad if ‘a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.’” Id. (quoting
United States v. Stevens, 559 U.S. 460, 472–73 (2010)). “To justify facial
invalidation, a law’s unconstitutional applications must be realistic, not
fanciful, and their number must be substantially disproportionate to the
statute’s lawful sweep.” United States v. Hansen, 599 U.S. 762, 770 (2023)
(first citing N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 14
(1988); and then citing Members of City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 800–01 (1984)).
A
Merriott argues that the district court erred by concluding that, under
United States v. Hicks, 980 F.2d 963 (5th Cir. 1992), his overbreadth claim
was inappropriate. Because an overbreadth challenge is “essen[tially] . . . an
exception to the usual requirements of standing[,]” Int’l Soc. for Krishna
Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 499
7
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(5th Cir. 1989), 4 and Hicks ensures an overbreadth challenge is nevertheless
“appropriate” to entertain as a threshold matter, we address this issue first,
Hicks, 980 F.2d at 969.
In Hicks, this court held that “an overbreadth challenge is not
appropriate if the [F]irst [A]mendment rights asserted by a party attacking a
statute are essentially coterminous with the expressive rights of third
parties.” Id. at 969 (first citing Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
504 (1985); and then citing Vincent, 466 U.S. at 801–02). This holding rested
on the principle articulated by the Supreme Court in Brockett that an
overbreadth challenge is inappropriate if the challengers only “desire to
engage in protected speech that the overbroad statute purports to punish”;
an as-applied challenge is instead the proper vehicle for the claim. 472 U.S.
at 504; see also Vincent, 466 U.S. at 801–02 (rejecting overbreadth challenge
as “inappropriate” where there was “nothing in the record to indicate that
the [challenged enactment] w[ould] have any different impact on any third
parties’ interests in free speech than it ha[d] on the” plaintiffs).
Consistent with Brockett and its progeny, this court will not entertain
an overbreadth challenge where the challenger alleges that the enactment is
overbroad simply because it reaches their own conduct, just as it would
another. Hicks, 980 F.2d at 969 (dismissing overbreadth challenge because
challengers did not argue that the statute “chille[ed] expression other than”
profanity, in which they engaged and for which they were punished). For
example, it has rejected overbreadth challenges where a plaintiff “fails to
allege any additional conduct that would be unconstitutionally prohibited”
by the challenged enactment. Longoria Next Friend of M.L. v. San Benito
_____________________
4
Still, “Article III standing retains rigor” in overbreadth cases and it undisputedly
exists here. See Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir. 2010).
8
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Indep. Consol. Sch. Dist., 942 F.3d 258, 270 (5th Cir. 2019). Conversely, it has
permitted overbreadth challenges where a plaintiff has “pointed to” multiple
“potential applications” of the challenged law that are “distinct from their
own situation.” Seals v. McBee, 898 F.3d 587, 599 (5th Cir. 2018) (approving
of overbreadth challenge because “plaintiffs raise[d] numerous hypotheticals
that [we]re not coterminous with the conduct for which they were
arrested”).
Here, as in Seals, Merriott has “pointed to” multiple “potential,”
“hypothetical[]” “applications” of the Policy that are “distinct from [his]
own situation.” See id. The Policy prohibits “personal[,]” “impertinent[,]”
and “slanderous” speech, as well as “becom[ing] boisterous.” Merriott
pleaded that, by Appellees’ own admission in a letter to the Louisiana
Attorney General, he was interrupted because his remarks were
“defamatory” according to the City Council. But the Policy forbids much
more than what Appellees interrupted Merriott for doing. Like Seals, there is
a seemingly endless list of “realistic, no[n][-]fanciful,” see Hansen, 599 U.S.
at 770, potential applications of the Policy to scenarios unlike Merriott’s, see
Seals, 898 F.3d at 599. And the Policy, like the law in Seals, concerns “core”
First Amendment freedoms. See id. at 600.
Because Merriott has raised multiple “potential applications” of the
Policy that are “distinct from [his] own situation,” the rights he asserts are
not “essentially coterminous with” third parties’, and we may proceed to the
merits of his overbreadth challenge. See id. at 599; see also Hicks, 980 F.2d at
969.
B
To evaluate Merriott’s overbreadth challenge, we first must
“construe the challenged statute.” See Seals, 898 F.3d at 593 (quoting
Stevens, 559 U.S. at 474). “‘We start, of course, with the [Policy’s] text,’ and
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proceed from the understanding that ‘unless otherwise defined, . . . terms are
generally interpreted in accordance with their ordinary meaning.’” Sebelius
v. Cloer, 569 U.S. 369, 376 (2013) (citation modified) (quoting BP Am. Prod.
Co. v. Burton, 549 U.S. 84, 91 (2006)). 5 After construing the Policy, our next
step is to decide whether the Policy “encompasses a substantial number of
unconstitutional applications ‘judged in relation to [its] plainly legitimate
sweep.’” Seals, 898 F.3d at 593 (quoting Stevens, 559 U.S. at 473).
Here, because the Policy does not define the terms “personal,
impertinent or slanderous remarks” or “becom[ing] boisterous,” we
interpret each by its ordinary meaning. See Stevens, 559 U.S. at 474 (noting
the “ordinary meaning” of statutory terms is “properly applie[d]” when
construing a statute to assess a First Amendment overbreadth challenge);
United States v. Perez, 43 F.4th 437, 442, 445 (5th Cir. 2022) (applying
ordinary meaning in overbreadth case). We then consider its scope.
1
“Personal” is ordinarily understood to mean “of, relating to, or
affecting a particular person.” 6 And a “remark” is ordinarily understood to
mean “the act of remarking,” “an expression of opinion or judgment,” or
“mention of that which deserves attention or notice.” 7 To “remark,” means
“to take notice of” or “to express as an observation or comment.” 8
_____________________
5
Generally, a court will defer to a city’s interpretation of its own rule or ordinance,
so long as it “does not conflict with the . . . text.” Zimmerman v. City of Austin, 881 F.3d
378, 394 (5th Cir. 2018) (quoting Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir.
2013)). Here, Appellees have not suggested that an authoritative interpretation exists.
6
Personal, MERRIAM-WEBSTER DICTIONARY, https://perma.cc/T4EA-68SX.
7
Remark, MERRIAM-WEBSTER DICTIONARY, https://perma.cc/3PR2-24HC.
8
Id.
10
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Based on the ordinary meaning of “personal remarks,” the Policy
prohibits speakers from uttering an infinite number of protected, relevant
statements or questions. For example, a speaker must refrain from: (1) using
a councilmember’s name for the record; (2) mentioning that a
councilmember may have a personal stake in the outcome of a vote;
(3) stating that a councilmember engaged in a corrupt act; (4) highlighting
that a councilmember had recently been convicted of a crime; (5) claiming
that a councilmember lied to the public; (6) suggesting that a councilmember
had a conflict of interest; and (7) bringing to public attention that a
councilmember had been sued—just to name a few. The Policy forbids a
citizen from noting that a councilmember has—even questionably—done
anything that may be relevant to the public. The possible applications are
unquantifiable, especially when not harnessed by any limiting principle.
This court has not yet considered the constitutionality of a provision
that bars “personal remarks,” as did the Ninth Circuit did in Acosta v. City of
Costa Mesa, 718 F.3d 800 (9th Cir. 2013) (per curiam). Acosta involved a facial
overbreadth challenge to an ordinance governing speech in city council
meetings that stated, in relevant part:
It shall be unlawful for any person while addressing the council
at a council meeting to violate any of the following rules after
being called to order and warned to desist from such conduct:
No person shall make any personal, impertinent, profane,
insolent, or slanderous remarks.
Id. at 811. In holding that the ordinance was facially overbroad, the Ninth
Circuit noted that it captured “nothing more than bold criticism of City
Council members,” but it is a “bedrock principle underlying the First
Amendment . . . that the government may not prohibit the expression of an
11
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idea simply because society finds the idea itself offensive or disagreeable.”
Id. at 815–16 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)). 9 We agree.
2
“Impertinent” means “given to or characterized by insolent
rudeness” or “not restrained within due or proper bounds especially of
propriety or good taste.” 10 With no limiting principle, this provision
effectively allows the City Council to decide which comments are permissible
at its whim. If a councilmember is offended by comments that the Council
does “not have the citizenry’s best interest in mind,” or it is “breaking the
law,” or “not listening to the demands of its constituents,” the Council could
simply silence the speaker.
Although we have also not considered whether a prohibition on
“impertinent . . . remarks” runs afoul of the Constitution, Acosta held that a
verbatim enactment did. Id. at 811. Because the Policy is so unbounded and
covers a substantial amount of core First Amendment activity in relation to
its legitimate sweep, we agree.
3
As for the term “slanderous remarks,” we held overbroad a portion
of a city ordinance that forbade amplification of “slanderous” sound in
Reeves v. McConn, 631 F.2d 377, 380 n.1, 387–88 (5th Cir. 1980). Reeves noted
_____________________
9
District courts have reached similar conclusions. See Marshall v. Amuso, 571 F.
Supp. 3d 412, 425 (E.D. Pa. 2021) (holding a prohibition on “personally directed” speech
in school district meeting likely overbroad); Monroe v. Hou. Indep. Sch. Dist., 419 F. Supp.
3d 1000, 1007–09 (S.D. Tex. 2019) (holding a school-board-meeting policy against “name-
calling” and “offensive or derogatory remarks” likely overbroad), vacated in part on other
grounds, No. 19-cv-1991, 2021 WL 5830822 (S.D. Tex. Nov. 3, 2021).
10
Impertinent, MERRIAM-WEBSTER DICTIONARY, https://perma.cc/CQ49-
9ASX.
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that, under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its
progeny, “certain forms of common-law defamation are . . . protected by the
First Amendment, such as statements about public officials unless made with
knowledge of the statement’s falsity or reckless disregard for its accuracy.”
631 F.2d at 387. Because the ordinance “ma[de] no attempt to distinguish the
specific forms of slander that the city may constitutionally prohibit[,]” we
concluded that the ordinance’s “overbreadth exert[ed] a substantial chill
upon speech that is close to the heart of the First Amendment, because it
place[d] the speaker in doubt regarding what he [could] say . . . about public
officials and public figures.” Id. at 387–88.
Here, “slanderous” is used in the same way against the same
backdrop of Sullivan’s progeny, and it creates the same “chill.” See id. at 387.
We reaffirm that, standing alone, this proscription is overbroad.
4
Ordinarily, “boisterous” means “noisily turbulent” or “rowdy.” 11
The parties agree that, as used in the Policy, the term refers to both
traditional speech and conduct. Under that expansive definition, banging
one’s hand on the podium, emphatic hand gestures, pointing, crying,
clapping, or simply shifting one’s tone could trigger application of the Policy,
as could any remark deemed “rowdy” or inflammatory. Again, the potential
applications are limitless.
Albeit in dicta, this court previously “question[ed] whether, standing
alone and without context, a prohibition on ‘boisterous’ conduct would
survive an overbreadth challenge” in Roy v. City of Monroe, 950 F.3d 245, 253
(5th Cir. 2020). Because the issue was not preserved in Roy, we did not
_____________________
11
Boisterous, MERRIAM-WEBSTER DICTIONARY, https://perma.cc/TK23-XKZM.
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address the question. Id. at 251 n.1, 253. But in the context of this case, we
hold that a standalone prohibition on “becom[ing] boisterous” is too broad
to be constitutionally permissible.
This holding is guided by Coates v. City of Cincinnati, in which the
Supreme Court struck down as facially overbroad a criminal ordinance
prohibiting groups on sidewalks from “conduct[ing] themselves in a manner
annoying to persons passing by.” 402 U.S. 611, 611, 614 (1971). Noting that
the ordinance covered a wide array of constitutionally protected conduct, the
Court held the statute overbroad because its enforcement turned “entirely”
on “whether or not a policeman [was] annoyed.” Id. at 614. Here, the
Policy’s prohibition on becoming “boisterous” likewise turns “entirely” on
“whether or not a [councilmember] is annoyed.” See id. The doubt expressed
in Roy applies with equal force here. See Roy, 950 F.3d at 253. Merriott has
plausibly alleged that the Policy is overbroad. See Coates, 402 U.S. at 614.
* * *
We conclude, in construing the Policy—bereft of definitions—that it
contains no textual basis upon which we can fashion a narrowing
construction. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (“Facial
overbreadth has not been invoked when a limiting construction has been or
could be placed on the challenged statute.”). The parties do not advance one,
and we are not free to create one. See Serafine v. Branaman, 810 F.3d 354, 369
(5th Cir. 2016) (“We decline to give [an overbroad enactment] an additional
extra-textual limiting construction in a frantic attempt to rescue it.”). Bossier
City set the scope of its Policy, and it is nearly limitless.
We next conclude that the Policy “encompasses a substantial number
of unconstitutional applications ‘judged in relation to [its] plainly legitimate
sweep[.]’” See Seals, 898 F.3d at 593 (quoting Stevens, 559 U.S. at 474).
While a city may restrict speech in a limited public forum like Bossier City’s
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City Council chamber, it must do so reasonably in light of the purpose of its
forum. See Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758 (5th Cir.
2010). An enactment’s legitimate sweep may constitutionally encompass
disturbances to regulate the manner of speech in the government’s forum for
the government’s purpose, but it cannot do so in swaths so broad that nearly
anything that could be uttered could fall within its reach. See id.; Acosta, 718
F.3d at 811; Reeves, 631 F.2d at 397–88. That is especially true where, as here,
the purpose of the City Council meeting is to host debate. Cf. Fairchild, 597
F.3d at 759–60 (upholding speech policy in school board meetings in part
because that limited public forum’s purpose was “not for dialogue or
decision-making” and was instead a “learning and routing mechanism”).
This sort of debate is at the heart of the First Amendment tradition. See
Sullivan, 376 U.S. at 270 (noting that this country has “a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials”).
Because there is “a realistic danger that the [Policy] itself will
significantly compromise recognized First Amendment protections of parties
not before the court,” see Vincent, 466 U.S. at 801, and because the Policy’s
reach is so disproportionate to its legitimate sweep, see Stevens, 559 U.S. at
473, Merriott has plausibly alleged his facial overbreadth claim.
IV
Merriott next contends he plausibly alleged that the Policy is void for
vagueness because it fails to provide adequate notice of prohibited conduct
and invites arbitrary, discriminatory enforcement. We agree.
“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.” Grayned v. City of
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Rockford, 408 U.S. 104, 108 (1972). “A law is unconstitutionally vague if it
(1) fails to provide those targeted by the statute a reasonable opportunity to
know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary
and discriminatory enforcement.” McClelland v. Katy Indep. Sch. Dist., 63
F.4th 996, 1013 (5th Cir. 2023) (quoting A.M. ex rel. McAllum v. Cash, 585
F.3d 214, 224–25 (5th Cir. 2009)).
A
“A regulation is void for vagueness when it is so unclear that people
‘of common intelligence must necessarily guess at its meaning and differ as
to its application.’” Id. (quoting Connally v. Gen. Const. Co., 269 U.S. 385,
391 (1926)). When the challenged enactment “potentially restricts the right
of freedom of speech, then the standard is more stringent.” Medlin v. Palmer,
874 F.2d 1085, 1090 (5th Cir. 1989) (first citing Vill. of Hoffman Ests. v.
Flipside, Hoffman Ests., Inc., 455 U.S. 489, 499, (1982); and then citing Hynes
v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620 (1976)). Even
under a “stringent” test, this court “will not hold [a law] unconstitutionally
vague on its face if ‘it is clear what the ordinance as a whole prohibits’ or if
the ordinance ‘is surely valid in the vast majority of its intended
applications.’” Roy, 950 F.3d at 252. (quoting Hill v. Colorado, 530 U.S. 703,
733 (2000)).
1
Regarding “slanderous . . . remarks,” this court already held that a
threadbare prohibition on “slanderous” speech is void for vagueness. Reeves,
631 F.2d at 388. Here, the Policy’s prohibition on “slanderous” speech is
likewise threadbare.
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2
As for the prohibitions on “personal” and “impertinent
. . . remarks,” this court has yet to address these precise terms in a vagueness
challenge. But the Supreme Court held unconstitutionally vague similar
language that criminalized “annoying . . . persons passing by” on sidewalks
when done by groups of three or more persons. Coates, 402 U.S. at 611–12,
614. Coates held that the ordinance was “unconstitutionally vague because it
subject[ed] the exercise of the right of assembly to an unas[c]ertainable
standard,” noting that what “annoys some people does not annoy others.”
Id. at 614. The ordinance depended entirely “upon whether or not a
policeman [was] annoyed.” Id.
Relying on Coates, we held vague language prohibiting intentional
communication that “annoy[ed] or alarm[ed] the recipient.” See Kramer v.
Price, 712 F.2d 174, 176, 178 (5th Cir. 1983) (per curiam), vacated on other
grounds on reh’g, 723 F.2d 1164 (5th Cir. 1984). While the court’s reasoned
panel opinion in Kramer was vacated after the challenged statute was
amended, it is persuasive because it followed Coates. Kramer noted that
“Coates recognized that a statute is unconstitutionally vague when the
standard of conduct it specifies is dependent on each complainant’s
sensitivity.” Id. at 178; see also Marshall v. Amuso, 571 F. Supp. 3d 412, 424
(E.D. Pa. 2021) (holding that a school-board policy that prohibited speech
that was “irrelevant,” “abusive,” “offensive,” “intolerant,” or “otherwise
inappropriate” was too vague to give reasonable notice because “[w]hat may
be considered” speech of this sort “varie[d] from speaker to speaker, and
listener to listener” so much that the terms were “irreparably clothed in
subjectivity”).
Appellees argue that the Policy is not unconstitutionally vague
because the words are “commonly understood,” as each word may be
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No. 25-30325
defined by the dictionary. While this court has “resisted vagueness
challenges when the challenged law is couched in ‘commonly understood’
language,” Roy, 950 F.3d at 253, it has never held that a dictionary definition
is conclusive evidence of constitutionality. In fact, in Coates, the Supreme
Court reversed the Ohio Supreme Court’s reliance on and acceptance of a
dictionary definition as dispositive. 402 U.S. at 612–14. This court followed
suit in Kramer. 712 F.2d at 177–78. The existence of a common dictionary
definition does not automatically cure any constitutional defect. See Coates,
402 U.S. at 612–14.
Here, the terms “personal” and “impertinent”—which are
undefined—fail to provide speakers with a “reasonable opportunity to know
what conduct is prohibited.” See McCleland, 63 F.4th at 1013. Both terms
turn on a listener’s “sensitivity” alone. See Coates, 402 U.S. at 613–14. And
neither term “indicate[s] whose sensibilities must be offended.” See Kramer,
712 F.2d at 178; Coates, 402 U.S. at 613–14; Marshall, 571 F. Supp. 3d at 424.
3
The term “boisterous” is vague for the same reasons. In Roy, this
court considered the constitutionality of a city code’s prohibition of:
any act other than [constitutionally protected expression or
assembly] in such a manner as to disturb or alarm the public, or
make such a disturbance imminent, or to provoke another or
other to retaliatory action or violence.
950 F.3d at 251 (alteration in original). Although the plaintiff only argued that
the provision was vague because it permitted “arbitrary and discriminatory
enforcement,” this court also considered the notice question and further
stated, “standing alone, it may be reasonable to suppose that” the prohibition
“fail[ed] meaningfully to guide the police and thus pose[d] a substantial risk
of arbitrary or discriminatory enforcement.” Id. at 252–53. The court noted
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that statutory “[v]agueness can be ameliorated by a state court’s
authoritative interpretations, if they provide sufficient clarity.” Id. at 252
(quoting Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 597
(5th Cir. 2010)). It also noted that the Louisiana Supreme Court had
interpreted a prior version of the same ordinance and held that conduct is in
“‘a manner which would foreseeably disturb or alarm the public’ only when
that conduct ‘is violent or boisterous in itself, or . . . provocative in the sense
that it induces a foreseeable physical disturbance.’” Id. (quoting State v.
Jordan, 369 So.2d 1347, 1350 (La. 1979)). Based on that case, Roy held that
“boisterousness” is “familiar to ‘common usage and everyday speech,’” id.
at 253 (quoting Doe I v. Landry, 909 F.3d 99, 118 (5th Cir. 2018)), so the
ordinance was not too vague to describe “what [it] ‘as a whole prohibits,’”
id. at 252 (quoting Hill, 530 U.S. at 733).
Roy is distinguishable. First, the ordinance in Roy did not use the term
“boisterous.” See id. at 251. Second, it contained critical context absent
here—the challenged catch-all provision was part of a broader scheme that,
“as a whole,” forbade “disturbing the peace.” Id. at 249, 252–53. Third, the
ordinance could be interpreted against the backdrop of an authoritative
opinion of the Louisiana Supreme Court. Id. at 253. In this Policy, the term
“boisterous” is too vague to give reasonable notice of what is prohibited.
B
Merriott also argues that the Policy is too vague because it invites
arbitrary, discriminatory enforcement. Again, we agree.
“To gauge ‘arbitrary enforcement,’ courts consider whether the
[enactment] is liable to being ‘stretched out of shape.’” United States v. De
Bruhl, 118 F.4th 735, 745 (5th Cir. 2024) (quoting Skilling v. United States,
561 U.S. 358, 412 (2010)). This inquiry focuses on whether the enactment
has workable definitions or “explicit standards.” See, e.g., Roark & Hardee
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LP v. City of Austin, 522 F.3d 533, 551 (5th Cir. 2008) (quoting Grayned, 408
U.S. at 108); see also Hoffman Estates, 455 U.S. at 498 (“[L]aws must provide
explicit standards for those who apply them.” (quoting Grayned, 408 U.S. at
108)). When an enactment is “plagued with . . . hopeless indeterminacy” or
is “so standardless that it invites arbitrary enforcement,” it is
unconstitutionally vague. City of El Cenizo v. Texas, 890 F.3d 164, 190 (5th
Cir. 2018) (citation modified) (quoting Johnson v. United States, 576 U.S. 591,
595, 598 (2015)).
Here, violations of the Policy turn only on the listener’s discretion—
precisely what Coates forbids. 402 U.S. at 613–14; see also Kramer, 712 F.2d
at 178. As to the prohibition on “slanderous remarks,” in addition to holding
the term “slanderous” in a city ordinance overbroad, Reeves also held that it
was unconstitutionally vague. 631 F.2d at 388. Reeves applies with equal force
here. And absent any “explicit standards for those who apply” the Policy to
safeguard against its arbitrary and discriminatory enforcement by the City
Council, the Policy’s other terms are likewise unconstitutionally vague. See
Grayned, 408 U.S. at 108–09 (“A vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.”). In the First Amendment context, the lack of
any guiding standards is particularly troubling because “[u]ncertain
meanings inevitably lead citizens to steer far wider of the unlawful zone than
if the boundaries of the forbidden areas were clearly marked,” producing a
chilling effect. Id. at 109 (citation modified).
V
Merriott also argues that he plausibly alleged that the Policy
unconstitutionally discriminates based on content and viewpoint.
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In a limited public forum, the government may restrict speech based
on content if the restriction: (1) “does not discriminate against speech on the
basis of viewpoint”; and (2) “is reasonable in light of the purpose served by
the forum.” Fairchild, 597 F.3d at 758 (quoting Chiu v. Plano Indep. Sch. Dist.,
260 F.3d 330, 346 (5th Cir. 2001) (per curiam)). 12 A law that discriminates
based on content “regulate[s] speech based on its substantive content or the
message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 828 (1995). Viewpoint discrimination is “a subset” and “an egregious
form of content discrimination” that is presumptively unconstitutional. Id.
at 829–31. A government “may reserve [a limited public] forum for its
intended purposes, communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression merely because
public officials oppose the speaker’s view.” Perry Educ. Ass’n v. Perry Loc.
Educators’ Ass’n, 460 U.S. 37, 46 (1983).
A
“Giving offense is a viewpoint.” Matal v. Tam, 582 U.S. 218, 243
(2017). “[T]he public expression of ideas may not be prohibited merely
because the ideas are themselves offensive to some of their hearers.” Id. at
244 (quoting Street v. New York, 394 U.S. 576, 592 (1969)). Accordingly,
Matal held that the Lanham Act’s prohibition on federal registration of
trademarks “which may disparage . . . persons, living or dead, institutions,
beliefs, or national symbols, or bring them into contempt, or disrepute”
constituted viewpoint discrimination forbidden by the First Amendment. Id.
_____________________
12 “The scope of . . . [F]irst [A]mendment rights depends on the nature of the
forum to which [a plaintiff] seeks access.” Estiverne v. La. State Bar Ass’n, 863 F.2d 371,
376 (5th Cir. 1989). Here, the parties agree that Bossier City Council meetings constitute
limited public forums. A limited public forum “provide[s] ‘for public expression of
particular kinds or by particular groups.’” Fairchild, 597 F.3d at 758 (quoting Chiu, 260
F.3d at 346).
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at 227, 243–44 (quoting 15 U.S.C. § 1052(a)). In Iancu v. Brunetti, the
Supreme Court followed Matal and invalidated a provision of the Lanham
Act restricting the filing of “immoral or scandalous” matter because it
“permit[ted] registration of marks that champion society’s sense of rectitude
and morality but not marks that denigrate those concepts.” 588 U.S. 388,
390–94 (2019).
This court has not considered whether an enactment like the Policy
here is permissible, but the Sixth Circuit did in Ison v. Madison Local School
District Board of Education, 3 F.4th 887 (6th Cir. 2021). It held that a school
board policy restricting “abusive, personally directed, and antagonistic
speech” during board meetings constituted unconstitutional viewpoint
discrimination. Id. at 891, 893–95. The Policy “contain[ed] no definitions,”
but summary judgment evidence showed that the school board understood
“‘abusive’ to mean ‘hostile to one’s feelings or towards [sic] in your manner
of speech’”; “‘antagonistic’ to mean ‘to antagonize with hostility toward
oneself or one’s person’”; and “‘personally directed’ to mean ‘either
harassing or abusive statements directed at someone individually.’” Id. at
893 (citation modified). Relying on dictionary definitions, the Sixth Circuit
agreed that “by definition, [the policy] prohibit[ed] speech opposing the
[school] [b]oard.” Id. at 893–94. The terms “plainly fit in the ‘broad’ scope
of impermissible viewpoint discrimination because, like in Matal [and] Iancu,
. . . they prohibit[ed] speech purely because it disparages or offends.” Id.
(quoting Matal, 582 U.S. at 243).
Ison is persuasive. Like the school board policy in Ison, the Policy here
turns on the perception of the individual councilmembers. See id. Merriott
has plausibly alleged that its prohibition against “personal[,]”
“impertinent[,]” and “slanderous” speech constitutes unconstitutional
viewpoint discrimination. See Matal, 582 U.S. at 243; Iancu, 588 U.S. at 390–
94 ; Ison, 3 F.4th at 893–94. The prohibition on becoming “boisterous” is not
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plausibly viewpoint based, however, because it is entirely viewpoint neutral.
See Fairchild, 597 F.3d at 753, 758. Merriott raises no argument to the
contrary.
B
Merriott also challenges the Policy as an unconstitutional content-
based restriction. Because the Policy regulates viewpoint, it also regulates
content. See Rosenberger, 515 U.S. at 828. The only question is whether it does
so permissibly.
As noted, a government “may reserve the forum for its intended
purposes, communicative or otherwise, as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public
officials oppose the speaker’s view.” Perry, 460 U.S. at 46. Because the City
Council’s chamber is a limited public forum, “there is no requirement of
narrow tailoring” but “the [government] must be able to articulate some
sensible basis for distinguishing what may come in from what must stay out.”
See Minn. Voters All. v. Mansky, 585 U.S. 1, 16 (2018); see also Fairchild, 597
F.3d at 758; Chiu, 260 F.3d at 346.
Because the Policy’s prohibitions against “personal[,]”
“impertinent[,]” and “slanderous” speech are viewpoint based, they are
also content based to an impermissible degree and unreasonable. See
Rosenberger, 515 U.S. at 829, 831 (viewpoint discrimination is “an egregious
form of content discrimination” and is “a subset or particular instance of the
more general phenomenon of content discrimination”). 13 The prohibition on
_____________________
13
Notably, in Steinburg v. Chesterfield County Planning Commission, 527 F.3d 377
(4th Cir. 2008), the Fourth Circuit upheld a facial challenge to a policy against “personal
attacks” after concluding it was “content-neutral.” Id. at 387. Here, the Policy prohibits
personal remarks, which is a fatally broad, vague content-based restriction.
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becoming “boisterous” is different because it does not facially discriminate
based on content. Based on the type of forum, this portion of the Policy is
reasonably designed to host decorous debate—a permissible purpose. See
Fairchild, 597 F.3d at 753, 758.
VI
Merriott next argues, under Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978), that he plausibly alleged that the Policy
is unconstitutional as the City Council applied it to him. To state a Monell
claim, a plaintiff “must plead facts that plausibly establish that ‘(1) an official
policy (2) promulgated by the municipal policymaker (3) was the moving
force behind the violation of a constitutional right.’” St. Maron Props., L.L.C.
v. City of Houston, 78 F.4th 754, 760 (5th Cir. 2023) (quoting Peña v. City of
Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018)). Appellees dispute only
the second and third elements.
A
Under Monell, there are three ways to establish an official policy: (1)
“written policy statements, ordinances, or regulations”; (2) “a widespread
practice that is so common and well-settled as to constitute a custom that
fairly represents municipal policy”; or (3) “a single decision . . . when the
official or entity possessing final policymaking authority for an action
performed the specific act that forms the basis of the § 1983 claim.” Id. Here,
the parties agree that the policy created and promulgated by the City
Council—the policymaker by state law—constitutes an official policy. 14
_____________________
14
Before the district court, Merriott alternatively defended this prong by alleging a
custom of violating his First Amendment rights at three City Council meetings over a
course of three months. He makes no renewed, substantive argument regarding any custom
on appeal, so he has not maintained that position. See Canales v. Stephens, 765 F.3d 551, 576
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B
Despite the stipulated existence of an official policy, Appellees argue
that Merriott failed to plausibly allege the existence of an official policymaker
because “[n]o action of the City Council shall be valid or binding unless
adopted by the affirmative vote of a majority of the City Council
membership.” BOSSIER CITY, LA., CITY CHARTER § 3.13(f) (2025).
Because Merriott’s alleged constitutional violations stem from the
interruption by individual councilmembers, rather than the whole City
Council after a vote, Appellees argue Merriott’s claim fails.
Merriott’s as-applied Monell claim is based on enforcement of the
Policy, which Appellees admit is an official policy. Because the acts upon
which Merriott’s claims are based were made pursuant to that Policy,
Merriott plausibly alleged this element. 15
_____________________
(5th Cir. 2014); Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 343 n.5 (5th Cir.
2022).
15
Merriott alternatively argued before the district court that he plausibly alleged
Free, Montgomery, and Darby are final policymakers. The district court rejected that
argument because any act of the City Council must be by majority vote, and because Free,
who was presiding over the council meeting as President Pro-tem, exercised discretion to
enforce the policy, which is decision-making rather policymaking authority. “Municipal
liability attaches only where the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475
U.S. 469, 481 (1986). “[D]iscretion to exercise a particular function does not necessarily
entail final policymaking authority over that function.” Bolton v. City of Dallas, 541 F.3d
545, 549 (5th Cir. 2008) (per curiam). “There is a fine distinction between a policymaker
and a decisionmaker.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 167 (5th Cir. 2010).
The President Pro-tem’s enforcement decisions are not final because they are always
subject to appeal, which turns on the majority vote of the Council. Merriott failed to
plausibly allege that any of the councilmembers were final policymakers. See Bolton, 541
F.3d at 549.
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C
The final moving force element is satisfied by a “direct causal link
between the municipal policy and the constitutional deprivation.” Piotrowski
v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001). “[W]hen a municipal
policy itself violates federal law, such a policy necessarily constitutes the
‘moving force.’” Bishop v. Arcuri, 674 F.3d 456, 467 (5th Cir. 2012) (quoting
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997)).
Under Bishop, Merriott’s claim satisfies Monell because he has
plausibly alleged that the Policy is unconstitutional. See id. Apart from Bishop,
Merriott also alleged facts that speak precisely to a direct connection between
the Policy and the violation. He cites the City Attorney’s letter to the
Assistant Attorney General of Louisiana, which stated that Merriott’s
comments at the September 5, 2023, meeting “violate[d] the Bossier City
Council rules which prohibit ‘any person making personal, impertinent or
slanderous remarks.’” (footnote omitted). And Merriott pleaded that he was
“threatened with removal” under the Policy. He has more than plausibly
alleged a direct connection between the Policy and the threat of removal. 16
VII
Next, Merriott argues that he plausibly alleged a claim for First
Amendment retaliation.
_____________________
16
Appellees maintain that, because Merriott finished his remarks and was never
removed, he cannot allege sufficient facts to satisfy this prong. But the question is not
whether a government policy contemplates a particular deprivation; it is whether the policy
was the moving force behind the deprivation. See Piotrowski, 237 F.3d at 580; Monell, 436
U.S. at 694 (“[I]t is when execution of a government’s policy . . . inflicts the injury that the
government as an entity is responsible under § 1983.” (emphasis added)). Appellees
concede that they acted under the Policy. And interruption is tantamount to removal—in
either instance, the speaker’s ability to speak is stymied.
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“The First Amendment prohibits not only direct limits on individual
speech but also adverse governmental action against an individual in
retaliation for the exercise of protected speech activities.” Keenan v. Tejeda,
290 F.3d 252, 258 (5th Cir. 2002). To establish a claim, Merriott must have
plausibly pleaded that: (1) he was “engaged in constitutionally protected
activity”; (2) “the defendants’ actions caused [him] to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that
activity”; and (3) “the defendants’ adverse actions were substantially
motivated against [Merriott’s] exercise of constitutionally protected
conduct.” Id. Appellees dispute only the second element and whether
Merriott’s retaliation claim is cognizable under Monell.
A
The second element of a retaliation claim “requires some showing
that the plaintiff’s exercise of free speech has been curtailed.” McLin v. Ard,
866 F.3d 682, 696 (5th Cir. 2017) (quoting id. at 259). “A required showing
of actual injury does not necessarily mean that plaintiffs must cease criticizing
the government officials altogether in order to have a claim for retaliation.”
Id. at 697 (quoting Keenan, 290 F.3d at 260) (noting that it found injury to
plaintiffs who “‘backed off from direct involvement in helping expose
unlawful practices in the constable’s office,’ even though at least one plaintiff
continued to investigate and file complaints”). “The effect on freedom of
speech may be small, but since there is no justification for harassing people
for exercising their constitutional rights it need not be great in order to be
actionable.” Id. (quoting Keenan, 290 F.3d at 259).
Merriott pleaded that his “speech has been chilled in fact by
. . . Darby, Montgomery, and Free’s actions at the Council meetings.” He
alleged that he “must and does self-censor for fear of removal and/or
retaliation against him for his fully protected speech.” Taking that factual
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allegation in the light most favorable to him as we must, see Kelly, 868 F.3d at
374, Merriott has plausibly alleged that he self-censors for fear of
repercussion, which is a cognizable injury, see McLin, 866 F.3d at 696; see also
Speech First, Inc. v. Fenves, 979 F.3d 319, 322 (5th Cir. 2020), as revised (Oct.
30, 2020) (noting for purposes of standing that “[t]he chilling effect of
allegedly vague regulations, coupled with a range of potential penalties for
violating the regulations, was, as other courts have held, sufficient ‘injury’”
(footnote omitted) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014))).
B
Appellees argue that Merriott’s retaliation claim is implausible
because the councilmembers responsible for the conduct of which he
complains are not policymakers under Monell.
Merriott’s retaliation claim is based on three instances in which
councilmembers interrupted him at a City Council meeting, and
Montgomery’s and Darby’s efforts to pass “a resolution to eliminate public
comment on agenda items” in retaliation for Merriott’s comments at the
meetings. The three interruptions under the Policy suffice to state a claim,
see supra VI.B. But because the City Council never passed a resolution
eliminating the public comment period, and Merriott does not allege that
Montgomery and Darby are official policymakers under Monell for purposes
of that proposal, Merriott’s argument based on this theory fails. See supra
note 15.
VIII
The final issue is whether Merriott plausibly alleged an Open
Meetings Law (“OML”) claim under LA. STAT. ANN. §§ 42:11–42:29
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Under the OML, “[e]very meeting of any public body shall be open
to the public unless closed pursuant to” certain exceptions not relevant to
this appeal. Id. § 42:14(A). It is to be “construed liberally.” Id. The OML
permits anyone “who has been denied any right conferred by the provisions
of [the OML] or who has reason to believe” that a violation has occurred to
file a lawsuit to “void any action” taken in violation of the OML. Id.
§§ 42:24, 42:25(C). Relief includes declaratory relief and civil penalties. Id.
§§ 42:26, 42:28.
A
The principal dispute underlying the plausibility of Merriott’s OML
claim is whether the “secret meeting” between various councilmembers
constituted a “meeting” for purposes of the OML.
The OML defines three key terms. First, a “public body” means a
“village, town, and city governing authorities . . . and any other state, parish,
municipal, or special district boards, commissions, or authorities, and those
of any political subdivision thereof, where such body possesses policy
making, advisory, or administrative functions.” Id. § 42:13(A)(3). Second, a
“meeting” means: “the convening of a quorum of a public body to deliberate
or act on a matter over which the public body has supervision, control,
jurisdiction, or advisory power.” Id. § 42:13(A)(2). “[T]he convening of a
quorum of a public body by the public body or by another public official to
receive information regarding a matter over which the public body has
supervision, control, jurisdiction, or advisory power” also constitutes a
“meeting.” Id. Third, a “quorum” is “a simple majority of the total
membership of a public body.” Id. § 42:13(A)(4). The OML also contains a
limiting principle: it “shall not apply to chance meetings or social gatherings
of members of a public body at which there is no vote or other action taken,
including formal or informal polling of the members.” Id. § 42:13(B).
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Against this backdrop, we conclude that Merriott adequately pleaded
that a meeting occurred. Merriott alleged that four councilmembers attended
the conference, which constitutes a quorum. See BOSSIER CITY, LA.,
CITY CHARTER § 3.01(a) (2025) (setting the Council’s size at seven
members); La. Stat. Ann. § 42:13(A)(4). Merriott also pleaded that the
quorum met to “speak about changing the rules of public comment to limit
comment to the beginning of the meeting,” a matter over which the City
Council has “supervision, control, jurisdiction, or advisory power.” See
Bossier City, LA., City Charter § 3.07 (2025); La. Stat. Ann.
§ 42:13(A)(2). That constitutes “deliberat[ion] . . . on a matter over which
the public body” has power. See La. Stat. Ann. § 42:13(A)(2). 17 And
even if they did not deliberate, at a minimum, Merriott pleaded that the
quorum convened to “to receive information” within the meaning of the
OML regarding the potential to change the Policy. See id.
The OML’s limiting principle—that it does not apply to “chance
meetings or social gatherings . . . at which there is no vote or other action
taken, including formal or informal polling of the members”—is not
implicated here. See id. § 42:13(B). Merriott pleaded that this meeting was
not a “chance” or “social” one because the meeting was for a single purpose:
“to discuss changing the public comment rules.” And while there was no
formal “vote” at the conference, Merriott plausibly alleged that “formal or
informal polling of the members” took place. See id. The OML does not
define “polling,” but the Louisiana Attorney General has, and we defer to
Louisiana’s definition of its own law. See Zimmerman, 881 F.3d at 394. The
_____________________
17
The term “deliberate” means “to think about or discuss issues and decisions
carefully.” Deliberate, MERRIAM-WEBSTER DICTIONARY, https://perma.cc/23NK-6FE9.
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Louisiana Attorney General adopted Black’s Law Dictionary’s definition of
the term “polling” in an advisory opinion. 18 The opinion states:
The [OML] does not define a formal or informal poll;
however, with the instruction in LA. C.C. art. 11 that the words
of a law are given their generally prevailing meaning, we can
presume that the legislature intended to convey in LA. R.S.
42:13(B) that the [OML] does not apply to chance meetings or
social gatherings of a public body, provided there is no survey of
opinions or discussion of intended votes, whether such an inquiry is
referred to as a poll or not.
La. Atty. Gen. Op. No. 12-0177, 2012 WL 5473807, 5 (2012) (emphasis
added).
Here, Merriott pleaded that, in a meeting with a quorum,
Montgomery asked whether there would be enough councilmembers to pass
the resolution and received an affirmative response. At minimum, the fair
inference that must be drawn in Merriott’s favor is that Montgomery
counted four likely votes after “elicit[ing] votes, opinions, or preferences”
of his colleagues, or by “sampling [their] opinions.” Id.; see Kelly, 868 F.3d
at 374. According to Merriott’s complaint, there was some “survey of
opinions.” See La. Atty. Gen. Op. No. 12-0177, 2012 WL 5473807, 5 (2012).
_____________________
18 Black’s Law Dictionary contains multiple definitions of “poll”:
“A sampling of opinions on a given topic, conducted randomly or
obtained from a specified group.”
“The result of the counting of votes.”
“To ask how each member of (a group) individually voted.”
“To question (people) so as to elicit votes, opinions, or
preferences.”
Poll, Black’s Law Dictionary (8th ed. 2004).
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Because Merriott plausibly alleged a “meeting” took place, he
plausibly alleged an OML claim against Montgomery and Darby for
attending that meeting. 19 Because the OML only contemplates penalties for
those who “participate[] in” a meeting, however, and Merriott did not allege
that Free attended the meeting at all, the OML claim against him should be
dismissed. See La. Stat. Ann. § 42:28. 20
B
Appellees alternatively argue that dismissal is warranted because any
violation of the OML was merely “technical.”
The OML confers the right of open meetings, with notice and
comment, and permits private plaintiffs to sue to enforce those rights. See id.
§§ 42:14, 42:25. Hosting a “secret” meeting is far from technical—it flaunts
the very thing the OML seeks to prevent.
Appellees rely on two cases in support of their “technical” violation
argument, but both cases turned on the plaintiff’s notice and presence at
meetings. See Rushing v. Se. La. Univ., 2022-0032, 2022 WL 4286824, *7
(La. App. 1 Cir. 9/16/22) (holding that any violation was “mere[ly]
technical” and the plaintiff “was not denied any rights” because “he was
aware of the meeting and was personally present at the meeting”), writ
denied, 355 So.3d 618 (La. 2/14/23); Daigre v. Terrebonne Ass’n for Retarded
_____________________
19
Appellees argue that no meeting occurred under Brown v. East Baton Rouge Parish
School Board, 405 So.2d 1148 (La. Ct. App. 1981). But Brown involved “executive
sessions,” which are not at issue here, and “the parties stipulated” that the conferences at
issue “f[e]ll within the meaning of the term ‘meeting’ as defined in and covered by” the
OML. Id. at 1151.
20
Merriott also alleged that the Policy itself violates the OML; the district court
dismissed this claim as unsupported by the statute. Merriott has failed to maintain that
claim. See Roe, 53 F.4th at 343 n.5.
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Citizens, 543 So.2d 1108, 1109–10 (La. Ct. App.) (denying relief for
“technical violations of” the OML where the plaintiff had “actual notice of
the meeting, and he and his lawyer were present[,]” although no OML-
compliant notice of the meeting was given), writ denied, 548 So.2d 333 (La.
1989). 21 But here, Merriott had no notice and was not present.
Because Merriott’s claim is more than “mere[ly] technical” and
strikes at the heart of the OML, it is plausible.
C
The final question is whether Merriott’s claim for civil penalties is
cognizable.
Under the OML, “[a]ny member of a public body who knowingly and
wil[l]fully participates in a meeting conducted in violation [of the OML]
shall be subject to a civil penalty . . . .” LA. STAT. ANN. § 42:28.
Merriott seeks two forms of relief under the OML: (1) declaratory
relief stating that the individual defendants violated the OML; and (2) civil
penalties against them. But nowhere does Merriott allege that they acted
knowingly and willfully. Merriott effectively concedes this point by failing to
respond to it in his reply brief. See Duncan v. Wal-Mart La., L.L.C., 863 F.3d
406, 408 n.2 (5th Cir. 2017) (stating that failing to address appellees’
responsive arguments is tantamount to abandonment). His claim for civil
penalties must be dismissed. See LA. STAT. ANN. § 42:28.
_____________________
21
Appellees also cite Pittman v. Washington Parish Reservoir District of State, 2005-
2278, 2006 WL 3734644 (La. App. 1 Cir. 12/20/06), but it found no OML violation at all.
See id. at *3–4.
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IX
The judgment of the district court is AFFIRMED in part and
REVERSED in part. The district court’s dismissal of Merriott’s content-
and viewpoint-based discrimination claims based on the prohibition on
“becom[ing] boisterous,” his Open Meetings Law claim against
Councilmember Free, and his Open Meetings Law claim for civil penalties,
are AFFIRMED. The remainder of the judgment is REVERSED, and the
case is remanded for proceedings consistent with this opinion.
34