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finding that a preliminary injunction against a similar school board policy prohibiting "offensive or derogatory remarks" promoted the public interest
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CIVIL ACTION NO. H-19-1991
2019-12-11
Gerry MONROE, Plaintiff, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant.
Scott David Newar, Attorney at Law, Houston, TX, for Plaintiff. Eric J.R. Nichols, Butler Snow LLP, Austin, TX, for Defendant.
Scott David Newar, Attorney at Law, Houston, TX, for Plaintiff.
Eric J.R. Nichols, Butler Snow LLP, Austin, TX, for Defendant.
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S SECOND AMENDED MOTION FOR PRELIMINARY INJUNCTION
EWING WERLEIN, JR., UNITED STATES DISTRICT JUDGE
The United States Court of Appeals remanded this case two weeks ago with instructions for this Court to:
determine in the first instance whether and to what extent Monroe has adequately alleged a violation of the "existing HISD policy" or HISD's clarification thereof and, following the mandates of Rule 65, determine whether a preliminary injunction should issue.
[and]
also, in a manner consistent with this opinion, decide whether HISD should be enjoined from enforcing its facilities ban on Monroe at the December 12 Board of Education meeting.
Document No. 62 at 8.
On an expedited schedule, the parties have briefed these issues and, on December 10, 2019, the Court conducted a hearing where additional testimony and evidence were presented and the Court heard the arguments of counsel.
The December 12 Board Meeting
The Court will first consider the second question raised by the Fifth Circuit, namely, whether HISD should be enjoined from enforcing its facilities ban (as modified by the July 15, 2019 letter) on Monroe at the December 12 Board of Education meeting. December 12 is the date of the last regularly scheduled School Board meeting of 2019 and, while the Board conceivably could call a Special Meeting, the possibility of such on the eve of Christmas holidays, which begin for HISD on December 20 and continue through the end of the year, seems unlikely. In asking this Court to revisit its denial of the preliminary injunction on HISD's facilities ban, the Court of Appeals recognized that a challenge to the facilities ban "was adequately briefed and contested in the district court," but that what was "lacking is analysis of whether [Monroe's threat that he would ‘take out’ the principal of Fonville Middle School] actually rose to the level of a true threat." The Court of Appeals's remand was not to relitigate de novo the issue of the facilities ban but rather to "analyze whether Monroe's speech or conduct constituted a true threat." The evidence on this consists of the testimony and exhibits received at the evidentiary hearing held on July 11, 2019. The Court's Findings of Fact most pertinent to this issue are found at pages 2-5 of the Memorandum and Order Denying Preliminary Injunction (Document No. 41) entered July 19, 2019. It is these facts that the Court of Appeals expects the District Court to analyze and come to its own judgment on whether Monroe's speech or conduct constituted a true threat.
Id. at 5 n.2.
Id. at 6.
The Court finds from a preponderance of the evidence that at the HISD School Board meeting on April 11, 2019, Plaintiff Monroe meant to communicate a serious expression of an intent to commit an act of unlawful violence against Principal Irma Sandate when, while wearing a shirt with Principal Sandate's photograph and the text, "PRINCIPAL IRMA SANDATE MUST GO! BECAUSE SHE DON'T LIKE BLACK PEOPLE," Plaintiff paused, pulled up a bandana over his nose and mouth and spoke in a slower, deeper tone to say, "I got a team that can protect every last one of [the teachers]. You need some help?," and then shouted, "Do something with that idiot over there. This is the mandate: either you take her out or I'm going to take her out," followed by a gesture with his hand that some thought imitated a gun. It was this combination of speech and conduct--and especially the declaration of a "mandate" to "take her out or I'm going to take her out," after using a bandana to conceal all of his face except for his eyes and referring to his "team," that the Court finds from a preponderance of the evidence constituted a true threat. In making this finding, the Court has considered not only the testimony presented in Court but also the video that was taken in real time as Plaintiff made the threat. The Court finds not credible Plaintiff's testimony regarding his lack of intent at the time to convey a serious threat of unlawful violence. The Court makes no finding that Plaintiff actually intended "to murder a school principal" as the Court of Appeals implicitly questioned, but the Court does find that Plaintiff seriously intended to place Principal Sandate in fear of bodily harm or death and even more immediately, to place the HISD School Board in a state of fear that Principal Sandate was genuinely at risk of suffering bodily injury or death unless the Board yielded to Plaintiff's threat and removed her as principal. On this record, HISD's limited ban on Plaintiff attending School Board meetings for several months, and now for the sole remaining scheduled meeting of the year, was a reasonable response to Plaintiff's threat of violence and therefore is not viewpoint discrimination and is not a violation of Plaintiff's constitutional rights.
At the hearing conducted yesterday, Plaintiff Monroe described how he has taken care to comply with the July 15, 2019 letter with regard to the facilities ban and how on those occasions when in accordance with the procedures of the July 15 letter he has been permitted to visit certain HISD facilities, he has conducted himself appropriately. Hence, the suggestion is made, he would act appropriately if permitted to attend the December 12 School Board meeting. Perhaps so. But the Court's understanding of the appellate opinion is not that the Court of Appeals reversed the judgment of this Court and remanded the case for a new hearing on preliminary injunction. Instead, quoting Gates v. Texas Dep't of Protective Servs., 537 F.3d 404, 418 (5th Cir. 2008), the Court of Appeals stated that "we have not hesitated to remand a case to the district court for an explanation of its decision when no explanation was originally given." Specifically, the Court of Appeals remanded to allow the district court to "articulate what speech or conduct of Monroe reached a level of true threat" and, after making that analysis, to "decide whether HISD should be enjoined from enforcing its facilities ban on Monroe at the December 12 Board of Education meeting."
Id. at 6.
Id. at 6, 8.
As observed in the Memorandum and Order Denying Preliminary Injunction on July 19, 2019, the July 15 ban, which is temporary and definite in duration, reflected a reasonable response to serious and legitimate security concerns. Given that the School Board meeting is a limited public forum, and given that the temporary restriction on Plaintiff's physical access to that forum does not discriminate against speech on the basis of viewpoint and was reasonable in light of the purpose served by the forum, the Court found that Plaintiff failed to prove by a preponderance of the evidence a substantial likelihood that he will prevail on his First Amendment claims with respect to the facilities ban, which ends in three weeks. That remains the holding of this Court.
HISD's Speech Policies for Monroe
The second reason for which the Court of Appeals remanded this case is for this Court to determine "whether and to what extent Monroe has adequately alleged a violation of the ‘existing HISD policy’ or HISD's clarification thereof, and, following the mandates of Rule 65, determine whether a preliminary injunction should issue." Here, the Court of Appeals observed that Monroe did not raise this subject in his Complaint and that the "record on the ‘existing HISD policy’ and its clarification is thus nonexistent or at best not developed." After remand, the Court permitted Plaintiff to file a Second Amended Complaint to allege a challenge to HISD's policy, and this claim is central to his Second Amended Motion for Preliminary Injunction. Plaintiff does not challenge the constitutionality of HISD's BE(LOCAL) and GKA(LEGAL) Policies referred to in the July 15, 2019 letter, but rather the specific "ban on Mr. Monroe's speech/expression [which] is far broader and more censorious than the speech/expression it restricts all other speakers from using." Plaintiff's challenges are to the underlined portions of the following excerpt from the July 15 letter:
Id. at 8.
Id. at 4.
Plaintiff's Second Amended Motion for Preliminary Injunction at 11 (Document No. 67).
With respect to your conduct at any of the above activities or at any other meetings or proceedings at HISD facilities or campuses, please be advised that HISD considers that the following conduct does not meet the standard for "appropriate" conduct and also that the following conduct disrupts and interferes with proceedings, as set out in existing HISD policy, including but not limited to HISD Policies BE(LOCAL) and GKA(LEGAL):
• Use of profanity;
• Personal verbal attacks on HISD personnel (e.g. , name calling );
• Making of threats (e.g. , "take someone out" or "knock someone out" or "turn a school upside down");
• Use of material to cover or obscure any part of your face while addressing any HISD Board member or employee;
• Wearing clothing containing offensive or derogatory remarks about any HISD Board member or employee;
• Use of any signs, banners, posters, or similar visual aids containing offensive or derogatory remarks about any HISD Board member or employee;
• Use or display of any object that could cause serious bodily injury (e.g. , a noose);
• Loud or violent physical gestures such as slamming hands on furniture;
• Threatening physical gestures such as a "finger gun"; and
• Yelling, shouting, or screaming.
You are further advised that if you engage in conduct listed above on HISD property, HISD is fully authorized under existing policies, following a warning that is disregarded, to have you removed immediately from HISD property without further warning or advance notice. You are further advised that if you engage in the above conduct on HISD property in the future, HISD may be required to issue additional Criminal Trespass Warnings.
Document No. 67-1 (underlining added to identify the specific restrictions on Plaintiff challenged by him as unconstitutional).
Unlike the facilities ban that expires in three weeks, these further restrictions (the "Appropriate Conduct Requirements") directed to Plaintiff contain no expiration date and expressly state that they apply to Plaintiff's "conduct on HISD property in the future." Moreover, although the challenged Appropriate Conduct Requirements principally describe conduct in which Plaintiff has engaged that is not specifically prohibited in HISD's existing written policies, they are an indefinite and ongoing restriction on Plaintiff's speech and conduct whenever he is on HISD property.
HISD's BE(LOCAL) and GKA(LEGAL) policies referenced in the July 15 letter are found in the record at pages 18-30 of Document No. 53. The BE(LOCAL) policy provides in relevant part:
Conduct During Board Meetings
Persons attending a meeting of the Board shall conduct themselves in an appropriate manner and shall not engage in conduct that disrupts or interferes with the proceedings. Failure to adhere to the required standards of conduct may result in removal of the responsible persons from the premises and may subject such persons to criminal penalties as provided in the Texas Penal Code.
Prohibited Conduct
The following conduct has been determined by the Board to constitute disruptive behavior and is, therefore, prohibited:
1. Possessing a weapon at the meeting;
2. Waving or displaying signs, placards, posters, or banners in such a manner as to pose a potential safety hazard or disrupt the proceedings;
3. Applauding, booing, cheering, or making other audible expressions of approval or disapproval in a loud and/or raucous manner calculated to disrupt the meeting; or
4. Using profane or vulgar language or gestures during presentation to, or interaction with, the Board.
Violations
Any violation of the standards of behavior shall result in a warning. Failure to refrain from engaging in the prohibited conduct upon receipt of a warning shall result in removal of the responsible person(s) from the meeting location and may subject such person(s) to criminal penalties as provided in the Texas Penal Code.
Document No. 53 at 20 of 51.
The GKA(LEGAL) policy provides in relevant part:
Trespass
A school administrator, school resource officer, or school district peace officer may refuse to allow persons to enter on or may eject a person from property under the district's control if the person refuses to leave peaceably on request and:
1. The person poses a substantial risk or harm to any person; or
2. The person behaves in a manner that is inappropriate for a school setting and:
a. The administrator, resource officer, or peace officer issues a verbal warning to the person that the person's behavior is inappropriate and may result in the person's refusal of entry or ejection; and
b. The person persists in that behavior.
Id. at 21 of 51.
Legal Standard
To obtain a preliminary injunction Plaintiff must demonstrate: (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the relief is denied, (3) the harm to Plaintiff outweighs the threatened harm to Defendant, and (4) granting the injunction will not disserve the public interest. Bluefield Water Ass'n, Inc. v. City of Starkville, 577 F.3d 250, 252-53 (5th Cir. 2009). The Fifth Circuit "ha[s] cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements." Id. at 253 (citing Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003) ).
Discussion
Plaintiff argues that portions of the Appropriate Conduct Requirements are unconstitutional under the First and Fourteenth Amendments. Specifically, Plaintiff challenges the prohibitions on "name-calling" and on wearing clothing or using signs, banners, posters, or similar visual aids "containing offensive or derogatory remarks about any HISD Board member or employee."
1. Substantial Likelihood of Success on the Merits
Plaintiff has established a likelihood of success on the merits as to his claim that these restrictions impermissibly discriminate on the basis of viewpoint in violation of the First Amendment. Even in a limited public forum such as a school board meeting, the Government may not discriminate on the basis of viewpoint. Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758 (5th Cir. 2010).
Discrimination against speech because of its message is presumed to be unconstitutional.... When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.... Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510, 2516, 132 L.Ed.2d 700 (1995) (internal citations omitted).
Here, the evidence is that speakers at HISD Board meetings may compliment or praise HISD Board members and administrators. The expressed purpose of the "Hearing of Citizens" item on meeting agendas is to hear "compliments and concerns." Thus, by prohibiting Plaintiff from expressing negative views (i.e., "name-calling," and "offensive or derogatory remarks") about the same subject, namely, the performance of HISD Board members and administrators, HISD is restricting Plaintiff's speech based on the negative opinion or perspective Plaintiff wishes to express. See Rosenberger, 115 S. Ct. at 2517 ("[I]n determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations."). Four Justices of the Supreme Court recently emphasized the dangers of just such a restriction. Matal v. Tam, ––– U.S. ––––, 137 S. Ct. 1744, 1766, 198 L.Ed.2d 366 (2017) (Kennedy, J., concurring in part and concurring in the judgment) ("The logic of the Government's rule is that a law would be viewpoint neutral even if it provided that public officials could be praised but not condemned. The First Amendment's viewpoint neutrality principle protects more than the right to identify with a particular side. It protects the right to create and present arguments for particular positions in particular ways, as the speaker chooses. By mandating positivity, the law here might silence dissent and distort the marketplace of ideas."). Such viewpoint discrimination violates Plaintiff's First Amendment right to free speech.
HISD's restriction on "name-calling" and "offensive or derogatory remarks" is also unconstitutionally vague and overbroad. Restrictions on the content of speech "must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. ‘Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ " Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 1106, 31 L.Ed.2d 408 (1972) (citation omitted). Under the Due Process Clause,
Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 132 S. Ct. 2307, 2317, 183 L.Ed.2d 234 (2012) (internal citation omitted); see also Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 2344, 138 L.Ed.2d 874 (1997) ("The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect on free speech.").
Defendant's prohibition of "name-calling" and "offensive or derogatory remarks" is neither limited to the narrow categories of speech that may be proscribed without violating the First Amendment, nor does it give Plaintiff fair notice of what speech will subject him to further sanctions. See Gooding, 405 U.S. 518, 92 S. Ct. 1103 (striking down prohibition on "opprobrious words or abusive language, tending to cause a breach of the peace" as unconstitutionally vague and overbroad); Reno, 521 U.S. 844, 117 S. Ct. 2329 (restriction on "indecent" and "patently offensive" material was facially overbroad under the First Amendment).
HISD makes no persuasive argument that the restrictions on "name-calling" and "offensive or derogatory remarks" are viewpoint neutral or that they survive a vagueness/overbreadth challenge on the merits. Instead, HISD argues that the Appropriate Conduct Requirements in the July 15 letter are not a policy subject to challenge but rather merely refer to other written policies. However, the July 15 letter purports to represent HISD's view of the types of conduct that are prohibited by HISD's written policies, and which conduct will subject Plaintiff to future sanctions, including removal from HISD's property and the issuance of further Criminal Trespass Warnings. Contrary to HISD's argument in its response brief, the July 15 letter represents that these restrictions apply to Plaintiff's conduct in the future. The restrictions therefore are not moot after December 31. HISD's prohibitions on "name-calling" and "offensive or derogatory remarks" are not found in the BE(LOCAL) and GKA(LEGAL) policies to which the July 15 letter refers, so the July 15 letter establishes independent restrictions on Plaintiff's speech. Thus, HISD cannot evade review of its representation to Plaintiff that he is prohibited in perpetuity from "name-calling" and wearing clothing or using signs with "offensive or derogatory remarks." These prior restrictions are unconstitutional for the reasons stated above, regardless of whether they can be characterized as a policy or not. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 639, 9 L.Ed.2d 584 (1963) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."). Accordingly, Plaintiff has established a likelihood of success on the merits of his claim that HISD's restriction of "name-calling" and the use of "offensive or derogatory remarks" on clothing or visual aids is unconstitutional.
2. Substantial Threat of Irreparable Injury
Plaintiff has demonstrated a substantial threat of irreparable injury if HISD's prohibition on his use of "name-calling" and "offensive or derogatory remarks" is not enjoined. Plaintiff credibly represents that he intends to continue to pursue his vocal criticism at HISD's Board Meetings of Board members and administrators. For example, he testified that when speaking at one School Board meeting each year he "gives grades" to School Board members and certain administrators and, while an "A" will be welcomed by the hearer, he expects an "F" would violate the policy imposed on him. He fears that vocal criticism or critical comments on his clothing or signs may be construed as "name calling" or "offensive or derogatory," leading to his removal from HISD's property and/or his arrest. "Loss of First Amendment freedoms, even for minimal periods of time, constitute[s] irreparable injury." Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996) (citing Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) ). Accordingly, Plaintiff has established a substantial threat of irreparable injury.
3. Balance of the Harms
HISD makes no showing of any harm it would suffer if Plaintiff is permitted to engage in critical speech or "name calling" or other expressive conduct such as "offensive or derogatory remarks" on his clothing or signs during the times when he is on HISD property. Any such harm is outweighed by the harm Plaintiff will suffer if HISD continues to chill his protected speech that criticizes the HISD Board and administrators.
4. Public Interest
Because HISD's prohibition on Plaintiff's speech of "name-calling" and his use of clothing or signs to make "offensive or derogatory remarks" about HISD personnel is in violation of the First Amendment, the public interest is not disserved by an injunction prohibiting HISD from enforcing against Plaintiff these unconstitutional proscriptions on his expressive rights.
Order
It is therefore
ORDERED that Plaintiff's Second Amended Motion for Preliminary Injunction (Document No. 67) is GRANTED in part and Defendant Houston Independent School District is preliminarily ENJOINED from punishing Plaintiff, either by removal from HISD facilities or by issuing him Criminal Trespass Warnings, on the basis of Plaintiff's engaging in otherwise lawful "derogatory" speech/expression, "offensive" speech/expression, "name calling," and similar expressive conduct containing offensive or derogatory remarks about any HISD Board member or employee, while Plaintiff is in HISD's facilities or campuses. Plaintiff's motion is otherwise DENIED.
Rule 65(c) provides that "[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." FED. R. CIV. P. 65(c). The Court finds that it is proper to require of Plaintiff a bond in the amount of $100.00 as a condition for issuance of the preliminary injunction.
It is SO ORDERED.
The Clerk will enter this Order, providing a correct copy to all counsel of record.
SIGNED in Houston, Texas, on this 11TH day of December, 2019.