Pollak v. Wilson

HARRY POLLAK, Plaintiff - Appellant, v. SUSAN WILSON, individually and her official capacity as Sheridan County School District No 2 Board of Trustees Chair; ARIN WADDELL, individually and their official capacity as Sheridan County School District No 2 Board of Trustees Vice-Chair; WAYNE SCHATZ, individually and his official capacity as Sheridan County School District No 2 Board of Trustees Trustee Schatz; SHANE RADER, individually and his official capacity as Sheridan County School District No 2 Board of Trustees Treasurer; ANN PERKINS, individually and her official capacity as Sheridan County School District No 2 Board of Trustees Trustee Perkins; ED FESSLER, individually and his official capacity as Sheridan County School District No 2 Board of Trustees Trustee Fesler; MARY BETH EVERS, individually and her official capacity as Sheridan County School District No 2 Board of Trustees Trustee Evers; DANA WYATT, individually and their official capacity as Sheridan County School District No 2 Board of Trustees Trustee Wyatt, Defendants - Appellees.

No. 22-8017

United States Court of Appeals, Tenth Circuit

December 27, 2022

D.C. No. 2:22-CV-00049-ABJ, (D. Wyo.)

Before TYMKOVICH, KELLY, and MATHESON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Scott M. Matheson, Jr. Circuit Judge

Harry Pollak was told to stop speaking at a school board meeting. He filed an action under 42 U.S.C. § 1983 alleging a violation of his free speech rights under the First Amendment. He then sought a preliminary injunction to enjoin the school board (the "Board") from enforcing the policy it cited to stop his speech. The district court denied that request, concluding he had not shown a likelihood of success on the merits of his First Amendment claim. In this interlocutory appeal, Mr. Pollak asserts that the district court abused its discretion in denying his request for a preliminary injunction. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.

I. BACKGROUND

A. Legal Background

1. First Amendment

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I.^[1] But "[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Minn. Voters All. v. Mansky, ___ U.S. ___, 138 S.Ct. 1876, 1885 (2018) (quotations omitted). "To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum." Verlo v. Martinez, 820 F.3d 1113, 1129 (10th Cir. 2016). The Supreme Court has "sorted government property into [the following] categories": traditional public forums, designated public forums, limited public forums, and nonpublic forums. Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 679 n.11 (2010); see also Verlo, 820 F.3d at 1129, 1129 n.6.

Traditional public forums include public streets and parks "that by long tradition have been open to public assembly and debate." Verlo, 820 F.3d at 1129. In traditional public forums, "any restriction based on the content of speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest." Martinez, 561 U.S. at 679 n.11 (quotations and alterations omitted). Contentneutral restrictions "must be narrowly tailored to advance a significant government interest." Verlo, 820 F.3d at 1131.

The government may create a designated public forum by opening "government property that has not traditionally been regarded as a public forum" for use as a public forum. Martinez, 561 U.S. at 679 n.11 (quotations omitted). "[S]peech restrictions in such a forum are subject to the same strict scrutiny as restrictions in a traditional public forum." Id.

The government also may create a forum "that is limited to use by certain groups or dedicated solely to the discussion of certain subjects," known as a limited public forum. Pleasant Grove v. City of Summum, 555 U.S. 460, 470 (2009). In a limited public forum, the government may impose restrictions so long as they are "reasonable in light of the purpose served by the forum" and viewpoint neutral. Martinez, 561 U.S. at 679 n.11, 685; see Shero v. City of Grove, 510 F.3d 1196, 1202 (10th Cir. 2007). A restriction is viewpoint-based if it "denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Cornelius v. NAACP Legal Def. &Educ. Fund, Inc., 473 U.S. 788, 806 (1985). This standard, which is less demanding on the government than the traditional public forum standard, also applies to a nonpublic forum. See Verlo, 820 F.3d at 1129.

2. Preliminary Injunction

"[A] preliminary injunction is an extraordinary remedy never awarded as of right." See Benisek v. Lamone, ___ U.S. ___, 138 S.Ct. 1942, 1943 (2018) (quotations omitted). "[I]t is the exception rather than the rule." Harmon v. City of Norman, 981 F.3d 1141, 1146 (10th Cir. 2020) (quotations omitted). To obtain a preliminary injunction, plaintiffs must show "(1) they are substantially likely to succeed on the merits of their claims, (2) they will suffer irreparable harm if the injunction is denied, (3) their threatened injury without the injunction outweighs any harm to the party opposing the injunction, and (4) the injunction, if issued, is not adverse to the public interest." Id. "In the First Amendment context, the likelihood of success on the merits will often be the determinative factor because of the seminal importance of the interests at stake." Verlo, 820 F.3d at 1126 (quotations omitted).

Although Mr. Pollak must show he is likely to succeed on the merits, "the burdens at the preliminary injunction stage track the burdens at trial." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). The Board therefore has the burden of establishing the Policy's constitutionality. See id. And if the Board fails to make a sufficient showing that the Policy is constitutional, Mr. Pollak will succeed in establishing a substantial likelihood of success on the merits. See id.; Awad v. Ziriax, 670 F.3d 1111, 1129 (10th Cir. 2012).

B. The School Board Policy

The school board for Sheridan County School District No. 2 (the "District") holds meetings that are open to the public. Mr. Pollak challenges school board Policy BEDH (the "Policy"), which governs participation at board meetings. The Policy provides:

Personnel matters are not appropriate topics to be discussed at regular board meetings. Decorum requires that such matters will be entertained in executive session as arranged by the Board. Speakers will not be permitted to participate in gossip, make defamatory remarks, use abusive or vulgar language.

.... The board chairperson will maintain the prerogative to discontinue any presentation which violates any of the public participation guidelines.

App. at 26.

C. Complaint

Mr. Pollak sued the trustees of the Sheridan County School District under 42 U.S.C. § 1983, claiming they infringed his First Amendment free speech rights. The complaint alleged as follows:

On February 7, 2022, the Board held a meeting, which included a period for public comment. During the comment period, the Board prohibited discussion of "whether the district [was] following the state constitution, personnel matters, criticism, and ridicule." App. at 9 ¶ 9. The Board Chair, Susan Wilson, announced that "[w]e do not talk about personnel unless it's favorable things. We always like to hear those. That's a personnel matter, which we are not allowed to speak about in public." Id. ¶ 10.

Mr. Pollak signed up to speak at the meeting. When it was his turn, he "mentioned Superintendent [Scott] Stults' name with respect to Stults' comments at the previous meeting." Id. ¶ 13. The Chair "seized on the mention of Stults' name as making a comment on a personnel matter[,] proceeded to shut down [Mr. Pollak]'s comment," and had Mr. Pollak removed from the premises. Id. ¶¶ 14-16.

The complaint asserted that the meeting was a limited public forum and that the Board restricted speech based on subject and viewpoint. The complaint also alleged that in restricting Mr. Pollak's speech, the Board "acted in accordance with existing policies . . . [or] made new policy as applied to" him. Id. at 10 ¶ 23.

Mr. Pollak sought an injunction to prevent the Board from restricting his free speech rights and a declaration that the Board's actions were unlawful. He also sought damages and fees.

D. Motion for Preliminary Injunction

A few weeks after filing the complaint, Mr. Pollak moved for a preliminary injunction. Below we discuss (1) the additional facts the parties provided and (2) their legal arguments in support of relief.

1. Additional Facts

Mr. Pollak provided a declaration in support of his motion. It said the following:

When Mr. Pollak signed up to speak at the Board meeting, the sign-up sheet said: "Due to ongoing litigation we will not hear audience comments on [COVID 19] mask mandates vaccinations, or comments regarding whether or not the district is following the constitution." Id. at 31 ¶ 5; see also id. at 39. Mr. Pollak said he "was not intending" to speak about those topics. Id. at 31 ¶ 6. During the public comment period, the Chair repeated that speakers were prohibited from addressing topics listed on the sheet. She also said speakers could not discuss personnel matters "unless it's favorable things." Id. at 31 ¶ 9.

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