51 F.4th 164
6th Cir.2022Background
- Plaintiff Carrie Davis regularly criticized Colerain Township at public board meetings and on the Colerain Police Department’s Facebook page.
- Township rules at issue: a 2020 "Meeting Rule" banning "profane, disrespectful or threatening language" at board meetings, and a police Facebook Rule allowing removal of comments deemed "inappropriate or offensive" (including racism, hatred, slander, threats, obscenity, violence, vulgarity).
- Davis uploaded a video to rebut a police chief’s Facebook post; the video was later removed. The district court found the video removal was under a separate no-videos rule, not the Facebook Rule.
- Davis sued under § 1983, alleging facial and as-applied First Amendment challenges to both rules; the district court granted summary judgment to the Township.
- On appeal the Sixth Circuit affirmed but held it lacked Article III jurisdiction: Davis lacked standing to challenge the Facebook Rule and the Meeting Rule claim was moot because the board formally repealed the rule; the court modified the judgment to dismiss without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for past injury (Facebook Rule — damages for removed video) | The video removal shows past injury from Facebook moderation; nominal damages available. | Removal was under the separate no-videos rule, not the Facebook Rule; causation lacking. | No standing for damages as to the Facebook Rule — past injury not fairly traceable to that rule (dismissal for lack of jurisdiction). |
| Standing for prospective relief (Facebook Rule — injunction/declaratory) | Davis intends to continue posting and fears chilling enforcement; asks court to relax standing because of chilling effect. | Davis offered only conclusory intent and no credible threat; police had not enforced the Facebook Rule against her. | No standing for injunctive relief — no certainly-impending injury and no credible threat of enforcement. |
| Overbreadth challenge to Facebook Rule | Rule is facially overbroad and chills third-party speech. | Overbreadth requires plaintiff to have Article III injury; Davis lacks standing to invoke third-party rights and cannot seek damages for others. | Overbreadth inapplicable because Davis has no Article III injury; cannot obtain damages for third-party harms. |
| Mootness of Meeting Rule (ban on "disrespectful" speech) | Rule facially unconstitutional; repeal does not eliminate claims for nominal damages for past enforcement. | Board formally repealed the rule after external Sixth Circuit precedent; repeal moots prospective relief and was not a sham. | Claim for prospective relief is moot due to formal repeal; plaintiff lacks cognizable past injury from the rule to sustain damages claim; case dismissed for lack of jurisdiction (without prejudice). |
Key Cases Cited
- Matal v. Tam, 137 S. Ct. 1744 (Sup. Ct.) (viewpoint-discrimination principles applied to content-based restrictions)
- Iancu v. Brunetti, 139 S. Ct. 2294 (Sup. Ct.) (viewpoint-discrimination and offensiveness doctrine)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (Sup. Ct.) (standing requires injury that is certainly impending)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct.) (standing requires concrete, particularized injury)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (Sup. Ct.) (threatened enforcement requires credible threat for pre-enforcement challenge)
- Uzuegbunam v. Preczewski, 141 S. Ct. 792 (Sup. Ct.) (nominal damages can satisfy redressability for Article III standing in some cases)
- Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (Sup. Ct.) (voluntary cessation and mootness; defendant must show conduct cannot reasonably be expected to recur)
- City of Los Angeles v. Lyons, 461 U.S. 95 (Sup. Ct.) (limits on seeking injunctions based on past injuries)
- McKay v. Federspiel, 823 F.3d 862 (6th Cir.) (standing and pre-enforcement-challenge standards)
- Resurrection Sch. v. Hertel, 35 F.4th 524 (6th Cir. en banc) (Article III live case-or-controversy requirement)