Lowery v. Jefferson County Bd. of Educ.

• Decision Date: 12 November 2009
• Docket Number: No. 07-6324.,07-6324.
• Citation: 586 F.3d 427
• Parties: Jeff LOWERY, Lisa Lowery, Randy Giles and Michael Kelley, Plaintiffs-Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION, Doug Moody and Greg Sharpe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

586 F.3d 427

Jeff LOWERY, Lisa Lowery, Randy Giles and Michael Kelley, Plaintiffs-Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION, Doug Moody and Greg Sharpe, Defendants-Appellees.

No. 07-6324.

United States Court of Appeals, Sixth Circuit.

Argued: August 6, 2009.

Decided and Filed: November 12, 2009.

ARGUED: G. Mark Mamantov, Bass, Berry & Sims, PLC, Knoxville, Tennessee, Michael S. Kelley, Kennerly, Montgomery & Finley, P.C., Knoxville, Tennessee, for Appellants. Linda J. Hamilton Mowles, Lewis, King, Krieg & Waldrop, P.C., Knoxville, Tennessee, for Appellees. ON BRIEF: G. Mark Mamantov, Bass, Berry & Sims, PLC, Knoxville, Tennessee, Michael S. Kelley, Kennerly, Montgomery & Finley, P.C., Knoxville, Tennessee, for Appellants. Linda J. Hamilton Mowles, Lewis, King, Krieg & Waldrop, P.C., Knoxville, Tennessee, for Appellees.

Before KEITH, SUTTON and WHITE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Three parents and their lawyer filed this § 1983 action under the First and Fourteenth Amendments after being denied permission to make a repeat appearance before the Board of Education of Jefferson County, Tennessee. The district court refused to overturn a jury verdict in favor of the defendants and awarded attorney's fees to the defendants. We affirm the jury's verdict, but we reverse the court's grant of attorney's fees.

I.

Jeff Lowery, Lisa Lowery and Randy Giles are parents of children who used to play on the Jefferson County High School football team. In October 2005, the coach dismissed their sons for challenging his leadership. See Lowery v. Euverard, 497 F.3d 584, 585-86 (6th Cir.2007). After the parents complained unsuccessfully to various officials, they decided to address their concerns to the school board as a whole.

The Jefferson County Board of Education allows individuals to apply to speak for five minutes at board meetings so long as their appearances are "not frivolous, repetitive, nor harassing." Bd. of Educ. Policy 1.404, ROA 35. The board tasks the director of schools with applying this standard and gives the chairman of the board authority to limit appearances on these grounds at the meeting. Even when someone has not applied beforehand, the board sometimes will vote at the meeting to allow an individual to speak.

Lisa Lowery called the office of Doug Moody, the director of schools, and asked for speaking time at a November 10, 2005 school board meeting, saying the subject was "football." Tr. 9. Moody's secretary called her back the day of the meeting to confirm her appearance. At the meeting, an attorney, Michael Kelley, spoke on behalf of the parents. Although Kelley was polite in tone, he criticized several school officials and threatened legal action if his clients' concerns were not addressed.

Dissatisfied with the results of the November meeting, Lisa Lowery called and asked for a speaking spot at the next scheduled board meeting on December 8, 2005, again saying the subject was "football." Tr. 12-13. After receiving the request, Moody conferred with Greg Sharpe, the chairman of the board. Moody thought the speech would be (1) "harassing" because Kelley's previous speech had threatened legal action and contained "very strong, derogatory comments . . . about personnel" and (2) "repetitive" because "the speaker was the same, it was going to be the same topic." Tr. 87. Sharpe was concerned only that the appearance would be repetitive, because he "had just had a meeting with Mr. Giles, and[,] according to Mr. Giles, most of what was going to be said there was similar to what we had heard in November." Tr. 180. They "made a joint decision" to reject the request, Tr. 179, and Moody called Giles to confirm the subject matter and notify him and the Lowerys of the denial.

The Lowerys, Giles and Kelley came to the December meeting but did not make any further request to speak. The next day the parents, represented by Kelley, filed a § 1983 lawsuit on behalf of their children against the football coach and various other school officials, alleging that the coach violated the children's First Amendment rights when he dismissed them from the team due to their criticism. The district court denied the defendants' motion for summary judgment, but our court reversed, holding that "there was no constitutional violation in [the children's] dismissal from the team." See Lowery, 497 F.3d at 600-01.

One week after filing the first lawsuit, the Lowerys, Giles and Kelley filed a second lawsuit, this time claiming that Moody, Sharpe and the school board violated their First Amendment rights when they refused to allow them to make a second appearance before the board. A jury found for the defendants and the district court not only denied the plaintiffs' motions for a new trial and judgment as a matter of law but also ordered the plaintiffs to pay attorney's fees (and expenses) of $87,216.49, calling their claims "frivolous" and accusing them of filing the lawsuit to harass the defendants. ROA 541-42.

II.

Federal law allows individuals to sue any person who, under color of state law, "subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. All agree that Moody, Sharpe and the school board are persons who acted under color of state law; the issue is whether their denial of the plaintiffs' second request to speak violated the First and Fourteenth Amendments. (The individual defendants have waived any qualified immunity argument by not raising it. See Brown v. Crowley, 312 F.3d 782, 788 (6th Cir.2002).)

We give fresh review to the denial of the motion for a judgment as a matter of law and abuse-of-discretion review to the motion for a new trial. See McCurdy v. Montgomery County, 240 F.3d 512, 517 (6th Cir.2001). A court may grant judgment as a matter of law "only when there is a complete absence of fact to support the verdict, so that no reasonable juror could have found for the nonmoving party," Pouillon v. City of Owosso, 206 F.3d 711, 719 (6th Cir.2000), and may grant a new trial "only when a jury has reached a seriously erroneous result," such as when the verdict is "against the weight of the evidence" or the trial is "influenced by prejudice or bias," Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir.2006) (citation omitted). Because this case touches on matters of free speech, we independently examine the record as a whole but with due deference to the jury's ability to assess the credibility of witnesses. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).

A.

The right to free speech is not absolute, especially when a would-be speaker seeks access to government property as a platform for his speech. The extent to which the government may regulate speech in this setting depends on the context of the speech and the government's reasons for restricting the speech. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). At one end, the government's regulatory powers are at their weakest in traditional public fora like parks and streets, 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 questions." Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). At the other end, the government has broad (though not complete) discretion to regulate speech in nonpublic fora like military bases, internal mail systems and public transit advertising spaces. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

The school board meeting at issue in this case falls in the middle. While this type of meeting offers citizens a chance to express their views to the board, it cannot accommodate the sort of uninhibited, unstructured speech that characterizes a public park. See City of Madison, Joint Sch. Dist. No. 8 v. Wis. Empl. Rel. Comm'n, 429 U.S. 167, 175 & n. 8, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); Jones v. Heyman, 888 F.2d 1328, 1331-32 (11th Cir.1989) (per curiam). That is why courts call this sort of forum a "designated" and "limited" public forum: "designated" because the government has "intentionally open[ed]" it "for public discourse," Cornelius, 473 U.S. at 802, 105 S.Ct. 3439, and "limited" because "the State is not required to . . . allow persons to engage in every type of speech" in the forum, Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). Within such a forum, the government may regulate the time, place and manner of speech so long as the regulation is (1) "content-neutral," (2) "narrowly tailored to serve a significant governmental interest" and (3) "leave[s] open ample alternative channels for communication of the information." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

The board's denial of the plaintiffs' request to speak under Policy 1.404 passes this test. Here is how the policy works: It allows citizens to apply and be approved to speak for five minutes at board meetings; it provides that "[t]he director of schools shall take appropriate steps to determine that appeals or appearances before the board are not frivolous, repetitive, nor harassing in nature"; and it says that "[t]he chairman shall have the authority to terminate the remarks of any individual who does not adhere to the above rules or chooses to be abusive to an individual board member or the Board as a whole." ROA 35. In practice, the "executive committee"—the director (Moody) and chairman (Sharpe), Tr. 65—decide whether to allow a particular individual to...