Jillian L. Dinehart

The Sixth Circuit reversed the Southern District of Ohio and ordered the district court to grant a preliminary injunction finding a strong likelihood of success on the merits of the plaintiff’s free speech claim related to an attempted public comment at a school board meeting. The plaintiff began to offer public comment by reading a written statement at a school board meeting when the board president cut off the microphone and put the meeting into recess. The board’s reaction followed a comment that the school district was failing and that the superintendent was a coward for not addressing critical race theory in the school curriculum. Per board policy, the speakers were allocated five minutes to make a statement. The plaintiff began her statement citing her various public roles in the region, then began to voice her disapproval of the board’s reluctance to audit the school curriculum against critical race theory. At 28 seconds into her speech, the plaintiff stated that she “recently heard about the failing Xenia Board of Education and the cowardice (sic) superintendent who cannot perform adequately in his role…”  The board president interrupted the plaintiff, shouting over her and threatening to cut the mic. The plaintiff continued to calmly read her prepared statement. The crowd began to loudly boo the plaintiff after the board’s threat. Board President Grech then moved the meeting into a recess. The plaintiff continued to speak over the booing crowd. A few seconds later, Board President Grech took the microphone away from the plaintiff but she continued speaking loudly without a mic as the board left the room. Although others were allowed to speak after the meeting resumed, the plaintiff was not permitted to complete her five minutes of public comment.  The plaintiff filed a 42 U.S.C. § 1983 action asserting a First Amendment claim under a “heckler’s veto” theory and sought a preliminary injunction to enjoin the board from enforcing its policy against her speech at future meetings. Board policy provided for five minutes of individual public comment but allowed the presiding officer to interrupt, warn, or terminate speech when the comments are repetitive, obscene, or constitute a true threat. The policy also allowed the presiding officer to request that an individual stop speaking or leave the meeting when the speaker is disruptive to the meeting, and should that fail, call for a recess or order the disorderly person removed. The board alleged that they halted the plaintiff’s speech because she was venturing down the path of name-calling, she was directly addressing the superintendent as opposed to the entire board, and that her conduct incited the crowd. In a hearing before the district court, Board President Grech agreed that she stopped the plaintiff from speaking because she was spreading baseless accusations and name calling. Notably, the board also chided another speaker for speaking just to the superintendent and not to the entire board, but did not take further action. That speaker spoke in favor of the superintendent. The plaintiff testified that despite her desire to speak again she felt threatened and a “little frightened” about speaking at a Xenia Board meeting without court intervention. Although the district court found that some of the plaintiff’s speech was protected, it found that the phrase “cowardice (sic) superintendent” was an unprotected ad hominem attack. The district court did not reach the question of whether the board’s regulation of the plaintiff’s speech was reasonable, finding that it was a fact question that could not be resolved at the hearing. The district court denied the injunction because the record at times favored each side of the dispute and therefore there was no clear indication that the plaintiff would succeed on the merits of the claim. Reversing the district court, the Sixth Circuit found that descriptors such as “failing” and “cowardice” are protected by the First Amendment, even in a limited public forum. The Circuit court stated that even if the plaintiff’s speech was offensive, the First Amendment protects that speech because anything less would allow the government to ban the expression of unpopular views. Regardless of the forum or the risk of offending some, viewpoint discrimination is impermissible. The court continued to state that it has never held that an ad hominem attack is per se unprotected speech, but further, that plaintiff’s speech was not an ad hominem attack (a personal dig or affront, or the criticism of an adversary’s character as opposed to the substance of the adversary’s arguments). As to the heckler’s veto arguments, for the first time the Circuit applied the Heckler’s Veto theory to a limited public forum and held that the board’s conduct amounted to a heckler’s veto. The First Amendment does not permit the government to curtail speech by succumbing to the crowd’s reaction to it. Removing a speaker due to crowd hostility will “seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose.” The court noted that in this case, not only did the board sanction the heckler’s veto, but in fact gave rise to it by threatening to turn off the microphone which only riled up the audience. Finally, the court also found that the equitable factors of a preliminary injunction – the likelihood to suffer irreparable harm – was satisfied with the possible curtailment of future speech. The court did not offer much analysis on this, but seems to imply that simply saying that there is a future intention to speak and that one is a “little frightened” to do so is enough. However, it seems most likely that the Court found the board’s action so distasteful that it did not put much analysis into this element and accepted the Plaintiff’s assertions without question. Aside from the ruling on speech protections – the court offers an interesting rebuke of the district court’s determination that the reasonableness of the board’s reaction was a question of fact, holding:  “A factual finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed.  Here, the district court failed to make definitive credibility determinations, or probe into Grech’s testimony. Instead the district court framed the facts in the light most favorable to each side, and then determined it was too close to call. But courts have to make these calls, even the tough ones. The correct call here is that defendants provided no legitimate reason to regulate Boddy’s speech because Boddy shared views critical of the Board and Lofton.” There are a range of citable moments in this opinion, including Judge Bush’s own soapbox speech on the importance of protecting speech in the current political times in the concurrence!