470 F.Supp.3d 760
M.D. Tenn.2020Background
- Plaintiffs (Commissioner Knight and two livestreamers, including two disabled veterans) livestream Montgomery County Commission meetings to personal social-media accounts; one plaintiff relies on livestreaming for employment/access.
- On Aug. 12, 2019 the Commission adopted Resolution 19-8-3 §7: "No live broadcast from within the Commission Chambers... is allowed," noting that proceedings are simultaneously available on YouTube for later viewing.
- Plaintiffs sued under 42 U.S.C. § 1983 (First Amendment), the Fourteenth Amendment (equal protection), and Article I, §19 of the Tennessee Constitution; defendant moved to dismiss.
- At the Rule 12(b)(6) stage the court accepted the complaint’s factual allegations as true and addressed whether livestreaming is protected speech and whether the Resolution is a permissible time, place, and manner restriction.
- Court denied the motion to dismiss as to the federal First Amendment claim and the Tennessee constitutional claim (surviving); granted the motion as to Equal Protection (plaintiffs conceded that claim).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether livestreaming is protected expressive conduct | Livestreaming is inherently communicative and enables real-time political commentary and audience interaction, so it is speech | Livestreaming is akin to mere videotaping/recording, which some cases treat as non-expressive or only an access right | Court: Plaintiffs plausibly alleged livestreaming is expressive conduct; claim survives at pleading stage |
| Whether the Resolution is a permissible time, place, and manner restriction in a limited public forum | Resolution is not narrowly tailored; no specific safety concerns or explanation why less-restrictive measures would not work | Resolution is content-neutral and justified by safety/disruption concerns; alternatives (posting later, commenting on social media) exist | Court: At Rule 12(b)(6) stage plaintiffs sufficiently pleaded the Resolution may not be narrowly tailored; claim survives further factual development |
| Equal Protection claim | Plaintiffs alleged disparate treatment of livestreaming vs. recording for later broadcast | Resolution treats livestreaming differently but defendant argued no constitutional violation | Plaintiffs conceded this claim; court dismissed Count Two |
| State-law (Tenn. Const. art. I, §19) claim | Tennessee free-speech provision affords at least as much protection as the First Amendment; claim mirrors federal theory | Defendant urged same analysis applies and sought dismissal | Court: Tennessee-constitutional claim survives for the same reasons as the First Amendment claim |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state plausible claim to survive motion to dismiss)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (municipal liability under § 1983 requires a policy or custom)
- Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177 (3d Cir.) (videotaping public meetings not necessarily expressive conduct)
- S.H.A.R.K. v. Metro Parks Serving Summit Cnty., 499 F.3d 553 (6th Cir.) (right to record analyzed as access to information)
- Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir.) (creation of audiovisual recordings may be inherently expressive)
- ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.) (recording as conduct preparatory to speech and thus within First Amendment)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test: narrow tailoring to serve significant government interest)