Moms for Liberty - Brevard Cnty. v. Brevard Pub. Sch.

582 F.Supp.3d 1214

MOMS FOR LIBERTY - BREVARD COUNTY, FL; Amy Kneessy; Ashley Hall; Katie Delaney; and Joseph Cholewa, Plaintiffs,

v.BREVARD PUBLIC SCHOOLS ; Misty Haggard-Belford; Matt Susin; Cheryl McDougall; Katye Campbell; and Jennifer Jenkins, Defendants.

Case No. 6:21-cv-1849-RBD-GJK

United States District Court, M.D. Florida, Orlando Division.

Signed January 24, 2022

Martha Astor, Pro Hac Vice, Ryan Morrison, Pro Hac Vice, Institute for Free Speech, Washington, DC, David Randel Osborne, Goldstein Law Partners, LLC, Jacksonville, FL, for Plaintiffs.

Howard S. Marks, Sheena A. Thakrar, Greenberg Traurig, West Palm Beach, FL, Gennifer Lynn Bridges, Burr & Forman, LLP, Orlando, FL, for Defendants.

ORDER

ROY B. DALTON JR., United States District Judge

Before the Court are:

1. Plaintiffs’ Motion for Preliminary Injunction (Doc. 3 ("Motion")); and

2. Defendants’ Response in Opposition to Motion for Preliminary Injunction (Doc. 19).

Plaintiffs’ Motion is due to be denied.

BACKGROUND¹

In this First Amendment case, Plaintiffs, Moms for Liberty ("M4L") and some of its members, are a nonprofit group who describe themselves as seeking "to organize, educate and empower parents to defend their parental rights." (Doc. 1, ¶¶ 3–7.) They allege that Defendants, Brevard County Public Schools and school board members ("Board"), unconstitutionally discriminated against their views by impeding Plaintiffs’ participation at Board meetings. (Id. ¶¶ 8–13, 23.)

Plaintiffs allege that the Board has an unconstitutionally restrictive and vague Public Participation Policy ("Policy"). (Id. ¶¶ 15, 59, 80.) The Policy requires all statements at Board meetings to be directed to the Board's chair ("Chair"), not individual Board members. (Doc. 20, p. 114.) It also provides that the Chair may, among other things, "interrupt, warn, or terminate a participant's statement when the statement is too lengthy, personally directed, abusive, obscene, or irrelevant" and "request any individual to leave the meeting when that person does not observe reasonable decorum." (Id. )

Further, Plaintiffs allege that the Chair selectively applies the Policy to limit viewpoints with whom she disagrees. (See Doc. 1, ¶ 63.) For instance, Plaintiffs allege that the Chair once asked Plaintiff Joseph Cholewa to leave as he discussed transgender children because Cholewa was "insulting half our audience" and not being "respectful." (Id. ¶¶ 44–46.) In contrast, Plaintiffs allege that the Chair once allowed several pro-LGBTQ activists to gesture at and speak directly to Board members without interruption. (Id. ¶ 27.)

So Plaintiffs sued asking the Court to find the Policy unconstitutional facially and as applied. (Id. ¶¶ 51–84.) Plaintiffs then moved for a preliminary injunction. (Doc. 3.) Defendants opposed. (Doc. 19.) After a hearing (Doc. 42), the matter is ripe.

STANDARDS

"A preliminary injunction is an extraordinary and drastic remedy." Munaf v. Geren , 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (cleaned up). To obtain one, the movant must "clearly establish": (1) substantial likelihood of success on the merits; (2) irreparable injury; (3) the injury to the movant outweighs any to the opposing party; and (4) the injunction would not be adverse to the public interest. Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000). If the first element is not met, a court may deny a preliminary injunction without considering the others. See, e.g. , Church v. City of Huntsville , 30 F.3d 1332, 1342 (11th Cir. 1994).

ANALYSIS

I. Content and Viewpoint Discrimination

First, Plaintiffs argue that Defendants’ Policy is unconstitutional both on its face and as applied because the restriction on "personally directed" or "abusive" speech purportedly constitutes content and viewpoint discrimination.² (Doc. 3, pp. 14–16.) The Court disagrees.

Though Plaintiffs use them interchangeably, "[v]iewpoint and content discrimination are separate, but related concepts." Sheets v. City of Punta Gorda , 415 F. Supp. 3d 1115, 1124 (M.D. Fla. 2019). A content-neutral restriction is one that is "justified without reference to the content of the regulated speech"—even if it affects only some speakers.³ See Jones v. Heyman , 888 F.2d 1328, 1332 (11th Cir. 1989) (cleaned up). Restrictions "outlining how someone may speak at a community meeting, prohibiting disruption, and requiring decorum are content-neutral policies." Dyer v. Atlanta Indep. Sch. Sys. , 852 F. App'x 397, 398, 402 (11th Cir. 2021), cert. denied , ––– U.S. ––––, 142 S.Ct. 484, 211 L.Ed.2d 293 (2021) ; see also Jones , 888 F.2d at 1332 (finding that removal of disruptive speaker at public forum meeting was content-neutral).

But in a limited public forum like the one here,⁴ not all restrictions must be content-neutral because the forum is not "open to the public at large for discussion of any and all topics." Barrett v. Walker Cnty. Sch. Dist. , 872 F.3d 1209, 1224 (11th Cir. 2017) (cleaned up). So content-based restrictions on expression in a limited public forum are permitted if they are viewpoint-neutral and reasonable, given the forum's purpose.⁵ See id. at 1225. A viewpoint-neutral restriction on content is one that is evenhandedly applied without regard to the specific message being advocated. See Cleveland v. City of Cocoa Beach , 221 F. App'x 875, 878–79 (11th Cir. 2007) (cleaned up).

On its face, the Policy is both content- and viewpoint-neutral.⁶ It allows the Chair to interrupt speech only when it is "too lengthy, personally directed, abusive, obscene, or irrelevant." (Doc. 20, p. 114.) Requiring the speaker to address the Chair rather than individual Board members is not based on the speech's content, but because members do not possess the power of the Board.⁷ (Doc. 19, p. 5.) And prohibiting abusive and obscene comments is not based on content or viewpoint, but rather is critical to prevent disruption, preserve "reasonable decorum," and facilitate an orderly meeting—which the Eleventh Circuit⁸ has held on multiple occasions is permissible. (Id. ); see Jones , 888 F.2d at 1332 ; Dyer , 852 F. App'x at 402 ; see also Rowe v. City of Cocoa , 358 F.3d 800, 803 (11th Cir. 2004). So Plaintiffs are unlikely to succeed in this facial challenge.

Nor are Plaintiffs likely to succeed in their as-applied challenge, which argues that Defendants restricted Plaintiffs’ critical viewpoints at the meetings while encouraging views they respect. (Doc. 3, p. 14.) The record does not support Plaintiffs’ argument.

Plaintiffs have identified four instances from January to October 2021 in which the Chair interrupted M4L members—one in which the Chair asked that member to leave. (Doc. 3-1; Doc. 3-2, ¶ 13; Doc. 3-3; Doc. 3-4, ¶¶ 6, 8, 10, 11.) But those four instances were out of more than a hundred times in which M4L members spoke unimpeded.⁹ (Doc. 20, p. 11.) The many hours of video reviewed shows these few interruptions were regularly brief and respectful, and Plaintiffs freely finished speaking. (See Doc. 21, pp. 4–5; see, e.g. , Doc. 20, p. 18.) The Chair also interrupted non-M4L members when they violated the Policy—including those making supportive comments or comments purportedly aligned with the view of the Chair—and conversely, she let M4L members and non-members purportedly disaligned with her view speak uninterrupted when they followed the policy. (See, e.g. , Doc. 20, pp. 16–17, 20–22, 24–25, 30–32, 44, 48–49, 69–74.) So the record evinces that the Policy was evenhandedly applied as a whole.¹⁰ See Cleveland , 221 F. App'x at 879.

As to the one time the Chair ejected Cholewa, she first warned him he was "pushing the limit" after he said the Democratic party accepts "the murder of full-term babies with abortion" and believes "white babies are born racist and oppressive." (Id. at 90.) She interrupted him again and asked him to leave after he had spoken for nearly two minutes, veered into other topics irrelevant to the discussion, and refused to stop after more warnings. (Id. at 91.) So Cholewa was permissibly excluded on that one occasion because his speech was abusive and disruptive. See Dyer , 852 F. App'x at 402 (upholding the exclusion of speaker for "abusive, abhorrent, and hate-filled" comments (cleaned up)). And he was free to—and did—return to future meetings, demonstrating that it was his actions, not his views, being sanctioned.¹¹ (See, e.g. , Doc. 20, pp. 93–94.) On this record, Plaintiffs have failed to clearly establish that they are likely to succeed in their as-applied challenge.¹²

II. Overbreadth and Vagueness

Plaintiffs also argue that the Policy is overbroad and void for vagueness, asserting that the Policy "sets no boundaries" for its prohibitions, chilling Plaintiffs’ speech. (Doc. 3, p. 21.) Again, the Court disagrees.

A restriction is overbroad if it "reaches a substantial amount of constitutionally protected conduct." Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc. , 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Here, the Policy does not affect a substantial amount of constitutionally protected conduct because abusive, irrelevant, and disruptive speech is permissibly restricted in a limited public forum. Cf. Dyer , 852 F. App'x at 402 ; Doe v. Valencia Coll. , 903 F.3d 1220, 1232–33 (11th Cir. 2018) ; United States v. Eckhardt , 466 F.3d 938, 944 (11th Cir. 2006). So the Policy is not overbroad.

A restriction is unconstitutionally vague if it "does not give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" or it "leaves government actors free do decide, without any legally fixed standards, what is prohibited." See United States v. Matchett , 837 F.3d 1118, 1122 (11th Cir. 2016) (cleaned up). Here, the Policy precisely lists what it expects of speakers and the Chair, so it gives a person of ordinary intelligence warning of prohibited conduct. See Horton v. City of St. Augustine , 272 F.3d 1318, 1330–31 (11th Cir. 2001). And it does not lack fixed standards, as...