571 F.Supp.3d 412
E.D. Pa.2021Background
- Pennsbury School Board Policies 903 and 922 govern public comment at board meetings; they bar speech described as "personally directed," "abusive," "irrelevant," "offensive," "intolerant," "inappropriate," and require speakers to announce their home address.
- During 2020–2021 meetings (including virtual sessions), the District screened and sometimes rejected or edited submitted comments; a March 2021 video was temporarily removed/edited after officials deemed a speaker's remarks "abusive."
- At the May 2021 meeting Assistant Solicitor Amuso repeatedly interrupted and terminated three plaintiffs (Marshall, Daly, Abrams) under Policy 903 for alleged violations (e.g., "irrelevant," "abusive," "disruptive").
- Plaintiffs assert repeated selective enforcement chilled their speech and seek a preliminary injunction barring enforcement of the Challenged Policy Terms and the address-announcement requirement.
- The Court held a preliminary-injunction hearing, concluded the policies as written and as applied likely violate the First Amendment (viewpoint discrimination, vagueness, overbreadth), found irreparable harm, and granted a preliminary injunction without requiring a bond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Viewpoint discrimination / as-applied challenge (interruptions/terminations) | Board selectively cut off critical or dissenting speakers; application targeted viewpoints | Policies are neutral on their face and speakers have been allowed to criticize on other occasions | Court: As applied, enforcement evidenced viewpoint discrimination; plaintiffs likely to succeed on merits |
| Vagueness of Challenged Policy Terms (e.g., "abusive," "offensive," "personally directed") | Terms are subjective, provide no objective standards, and invite arbitrary moderator judgment and chilling | Terms are administratively necessary to preserve decorum and forum limits | Court: Terms are unconstitutionally vague because they lack objective, workable standards; likely to succeed on facial vagueness challenge |
| Overbreadth (policy reaches protected speech) | Terms like "offensive" and "abusive" sweep in protected critical speech (e.g., criticizing employee competence) | Restrictions are appropriate to prevent personal attacks and preserve orderly meetings | Court: Terms are overbroad; they reach substantial protected expression and cannot be reasonably limited by the text |
| Address-announcement requirement (compelled disclosure of home address) | Compels speech and chills participation; unnecessary because residency can be verified on sign-up | Not enforced since June 2021; serves to verify speakers' eligibility | Court: Requirement likely chills speech and is unreasonable; injunction against enforcing it is warranted |
Key Cases Cited
- City of Madison v. Wisconsin Emp. Rels. Comm'n, 429 U.S. 167 (1976) (First Amendment protects public speech at school board meetings)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is presumptively impermissible)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (giving offense is a protected viewpoint)
- Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (disfavoring offensive ideas is viewpoint discrimination)
- Minnesota Voters All. v. Mansky, 138 S. Ct. 1876 (2018) (forum regulations require objective, workable standards to guide discretion)
- Ctr. for Investigative Reporting v. SEPTA, 975 F.3d 300 (3d Cir. 2020) (viewpoint discrimination impermissible in any forum)
- NAACP v. City of Phila., 834 F.3d 435 (3d Cir. 2016) (content-based rules in limited public forums must be reasonable and viewpoint neutral)
- Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017) (in First Amendment cases government bears burden to justify restriction)
- Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002) (vagueness/overbreadth concerns heightened where speech regulation affects public forum)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)
- Gooding v. Wilson, 405 U.S. 518 (1972) (term "abusive" can be overly broad beyond unprotected fighting words)