Ison v. Madison Local Sch. Dist. Bd. of Educ.

• Decision Date: 07 July 2021
• Docket Number: No. 20-4108,20-4108
• Citation: 3 F.4th 887
• Parties: Billy ISON; Sandra Ison; Abby Ison; Carolyn Dell Patrick, Plaintiffs-Appellants, v. MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

3 F.4th 887

Billy ISON; Sandra Ison; Abby Ison; Carolyn Dell Patrick, Plaintiffs-Appellants,

v.MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant-Appellee.

No. 20-4108

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2021

Decided and Filed: July 7, 2021

ARGUED: Jennifer M. Kinsley, KINSLEY LAW OFFICE, Cincinnati, Ohio, for Appellant. Matthew C. Blickensderfer, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellee. ON BRIEF: Jennifer M. Kinsley, KINSLEY LAW OFFICE, Cincinnati, Ohio, Matthew Miller-Novak, BARRON PECK BENNIE & SCHLEMMER CO., LPA, Cincinnati, Ohio, for Appellant. Matthew C. Blickensderfer, FROST BROWN TODD LLC, Cincinnati, Ohio, Brodi J. Conover, FROST BROWN TODD LLC, West Chester, Ohio, for Appellee.

Before: GIBBONS, COOK, and DONALD, Circuit Judges.

COOK, Circuit Judge.

After a shooting in the Madison Local School District, plaintiffs Carolyn Patrick and Billy, Abby, and Sandra Ison frequently appeared at School Board meetings to criticize the Board's handling of gun-related issues. The Board twice prevented them from speaking for failing to comply with its Public Participation Policy. The Isons and Ms. Patrick sued, asserting that the Board violated their First Amendment rights in those two instances and that portions of the Policy, as written, also violate the First Amendment. The district court granted the Board summary judgment and the Isons and Ms. Patrick appeal. We REVERSE in part and AFFIRM in part.

I.

In February 2016, a Madison student fired a gun and injured four students, sparking years of controversy surrounding safety in Madison schools. Approximately two years after the shooting, the Board enacted a resolution allowing staff to carry concealed weapons. (Around the same time, Madison students walked out of class during the school day to protest gun violence; school administration disciplined those students. Perturbed by these developments, the Isons and Ms. Patrick took to attending Board meetings.

The Board allots time for community members to speak during each meeting. In order to "conduct[ ] its meetings in a productive and efficient manner that assures that the regular agenda of the Board is completed in a reasonable period of time ... and allows for a fair and adequate opportunity for input to be considered," the Board enacted a Public Participation Policy. Per the Policy, those wishing to participate must complete a "public participation form," in person, at least two business days before the meeting. Only Madison residents may participate, and they must limit their speaking time to three minutes. Participants must address the presiding officer, not Board members individually. The Policy authorizes the presiding officer to:

1. prohibit public comments that are frivolous, repetitive, and/or harassing;

2. interrupt, warn, or terminate a participant's statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]

4. request the assistance of law enforcement officers in the removal of a disorderly person when that person's conduct interferes with the orderly progress of the meeting.

(R. 33-1 at PageID #: 658.)

In March 2018, the Isons and Ms. Patrick attended the first meeting where the Board discussed arming teachers and the student protest. Billy tried to speak but learned upon arrival that the Policy required preregistration. At the next meeting, the Board passed the armed staff resolution. The Isons, having preregistered, each expressed their disdain for the new resolution and the punishment of student protestors. Board President David French responded to their criticism, emphasizing the Board's effort to create a safe learning environment for all students and their commitment to remaining neutral on political issues.

The Isons spoke again at the next meeting (May 2018). A video of Billy Ison's remarks there shows him turning to address the room and reading from a prepared speech, accusing the Board of "threaten[ing]" the school to punish the student protestors. He calls the Board's justification offered at the prior meeting for punishing "a smokescreen intended to conceal their true motivation ... to suppress all opposition to pro-gun views" and "push its pro-gun agenda." And it depicts him accusing the Board of "taking a very strong position on guns" when it decided to arm staff.

The Board interrupted Billy twice during his remarks. First, French asked Billy not to use the word "threatening." Second, after Billy accused the Board of concealing their "true motivation" for punishing students, another Board member asked him to stop "putting words in [the Board's] mouth" and saying things "that are not facts." French then asked Billy to stop and warned that if he continued, security would escort him out. Billy continued, finishing his speech while a security officer escorted him calmly from the room. In total, he spoke just under three minutes. As French later recalled the incident, Billy "was being basically unruly, not following the rules, being hostile in his demeanor." He let Billy speak "until other people were starting to object and getting offen[d]ed by it."

The next problem for these plaintiffs developed when Billy completed a form in anticipation of the January 2019 Board meeting expecting that it would authorize participation by Ms. Patrick, Abby, and Sandra, as well as him. But when they arrived at the meeting, the Board allowed only Billy to speak, because the others failed to submit their own forms.

II.

The Isons and Ms. Patrick sued the Board, invoking 42 U.S.C. § 1983 to challenge under the First Amendment the Policy's "use of vague and undefined terms" and "the imposition of content-based restrictions on speech." They seek compensatory damages, a declaration that the Board's restrictions violate the Constitution, and an injunction barring enforcement of the Board's Policy.

The Board and Plaintiffs filed cross motions for summary judgment. Having heard oral argument and finding no First Amendment violation, the district court granted summary judgment to the Board. Plaintiffs appeal.

Plaintiffs’ arguments on appeal fall into three categories. First, they challenge the Policy's restrictions on "personally directed," "abusive," and "antagonistic" statements, and the application of those restrictions to prevent Billy from speaking at the May 2018 meeting. Second, they challenge the in-person preregistration requirement and the Board's application of that requirement to prevent Abby, Sandra, and Ms. Patrick from speaking at the January 2019 meeting. Third, they challenge the Policy—and the Board's discretion in implementing it—as unconstitutionally vague.

III.

We review a district court's grant of summary judgment de novo. Fisher v. Nissan N. Am., Inc. , 951 F.3d 409, 416 (6th Cir. 2020). A court appropriately grants summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The parties agreed below that no factual dispute exists, but where, as here, the parties present video evidence, we "view[ ] the facts in the light depicted by the videotape." Scott v. Harris , 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

IV.

The First Amendment, applicable to the states through the Fourteenth, prohibits the government from "abridging the freedom of speech."

U.S. Const. amend. I. The strength of the First Amendment protection, and the level of justification required for a speech restriction, varies depending on the forum where the speech occurs. See Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez , 561 U.S. 661, 679 n.11, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010). The parties here agree that the Board meetings constitute a "limited public forum," meaning it "is limited to use by certain groups or dedicated solely to the discussion of certain subjects." Pleasant Grove City v. Summum , 555 U.S. 460, 470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009).

In a limited public forum, the government may "regulate features of speech unrelated to its content" through "time, place, or manner" restrictions. McCullen v. Coakley , 573 U.S. 464, 477, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014). It has "wide[ ] leeway" to do so, and those restrictions survive if "they are narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Id . (quoting Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ).

The government may also impose content-based restrictions, such as those reserving the forum "for certain groups or for the discussion of certain topics," Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), so long as they "are reasonable in light of the purpose served by the forum and are viewpoint neutral," Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). But "the government may not engage in a more invidious kind of content discrimination known as ‘viewpoint discrimination.’ " Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp. , 978 F.3d 481, 491 (6th Cir. 2020) (quoting Rosenberger , 515 U.S. at 829, 115 S.Ct. 2510 ); see also Youkhanna v. City of Sterling Heights , 934 F.3d 508, 519 (6th Cir. 2019). Impermissible viewpoint discrimination "does not neutrally treat an entire subject as off limits," but rather "permits some private speech on the subject and only disfavors certain points of view." Am. Freedom Def. Initiative , 978 F.3d at 498.

A.

First, we consider the Board Policy's restrictions on "abusive," "personally directed," and "antagonist" statements. Plaintiffs urge that these restrictions, as written,...