OPERATION SAVE AMERICA v. City of Jackson
2012 WY 51
| Wyo. | 2012Background
- OSA demonstrated in Jackson with graphic abortion imagery around Elk Fest; Town sought ex parte TRO restricting protest activity near Town Square during Elk Fest; TRO prohibited graphic posters within two-block radius and without a permit between 5:00 a.m.–5:00 p.m. on May 21, 2011; district court granted TRO after finding immediate irreparable injury and limited notice due to time constraints; TRO expired after Elk Fest, and OSA appealed; Wyoming Supreme Court treated the appeal as not moot under public-importance and repetition theories; issues included standing, subject/personal jurisdiction, and First Amendment challenges; court reversed TRO for First Amendment violations and improper ex parte procedures; Rule 65 notice and bond issues were also discussed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ex parte TRO was valid and properly issued | OSA lacked notice/standing; no current litigation | Town stated immediate risk to children and sought relief; TRO appropriate | TRO issued without proper notice and failed First Amendment safeguards; reversed |
| Whether Town had standing and subject-matter/personal jurisdiction | Town lacked tangible interest and jurisdiction; not properly before court | Town had legal standing to protect youth; jurisdictional predicates satisfied | Town had standing; subject-matter and personal jurisdiction defenses rejected; ultimately TRO invalid for other reasons |
| Whether the TRO violated the First Amendment as a content-based prior restraint in a traditional public forum | OSA’s speech is public-issue speech; TRO impermissibly curtailed it | Town had compelling interest to protect children; restrictions narrowly tailored | TRO was a content-based prior restraint, not narrowly tailored; held invalid under strict scrutiny |
| Whether the TRO notice and bond requirements violated Rule 65 | Notice and bond were required and not provided | Ex parte relief allowed with proper showing; bond discretionary | Court abused discretion by issuing ex parte TRO without notice and without considering bond; reversed |
| Whether the case is moot or capable of repetition yet evading review | Case may recur; not moot due to public importance | Event passed; moot | Court found case not moot under capable-of-repetition analysis; but on balance, the TRO’s constitutional issues warranted reversal; dissent discussed mootness point |
Key Cases Cited
- Nebraska Press Ass'n v. Stuart, 427 U.S. 559 (1976) (presumption against prior restraints; immediacy and irreversibility of restraints that chill speech)
- Carroll v. Princess Anne, 393 U.S. 175 (1968) (ex parte restraints in First Amendment contexts require impossibility of notice)
- Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (time/place/manner restrictions; content-neutrality principles in public forums)
- Stevens v. United States, 130 S. Ct. 1577 (2010) (speech protections; depictions of sensitive content)
- Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994) (balancing of forum restrictions in public settings; buffer zone concepts)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content-based restrictions presumptively invalid; strict scrutiny burden)
- Brown v. Entm't Merchants Ass'n, 131 S. Ct. 2729 (2011) (protective limits on speech; scrutiny of regulatory restrictions on speech)
- Texas v. Johnson, 491 U.S. 397 (1989) (protest speech and dissent; government cannot suppress dissent to avoid offense)