First Amendment free speech claim under 42 USC § 1983; Preliminary injunction; Likelihood of success on the merits; “Viewpoint discrimination”; Protected speech; “Hecklers’ veto”

The court reversed the district court’s denial of plaintiff-Boddy’s motion for a preliminary injunction, concluding defendant-Grech “curtailed Boddy’s speech because of the viewpoint she expressed.” It also held that, “even in a limited public forum, the government can perpetuate a heckler’s veto” and that occurred here. Boddy addressed defendant-school board during a meeting public comment period about the alleged teaching of “critical race theory.” Grech, the president of the board, threated to turn off Boddy’s microphone, and when “some in the audience became disruptive in reaction to Boddy’s remarks,” Grech took the microphone away from Boddy before Boddy had used her allotted speaking time. Boddy brought a First Amendment claim under § 1983. The district court denied her motion “to preliminarily enjoin the Board from enforcing its” public participation policy to prohibit her speech at future meetings. It ruled that she failed to demonstrate irreparable harm or the strong likelihood of success on the merits. On appeal, the court noted that the parties correctly agreed that the meeting was a “limited public forum” in which “‘the government can impose reasonable restrictions based on speech content, but it cannot engage in viewpoint discrimination.’” The court held that the district court erred when it characterized Boddy’s use of the phrase “‘cowardice [sic] superintendent,’ as an ad hominem attack unprotected by the First Amendment.” The court concluded the record showed “that Grech’s application of the rules to Boddy’s speech was not content neutral.” As to the idea she “cut off Boddy because of her hostile tone[,]” the district court correctly “found—and the video evidence confirms—Boddy’s tone and demeanor were objectively professional and consistent with proper decorum.” Because the court determined “that defendants engaged in impermissible viewpoint discrimination,” Boddy showed “a strong likelihood of success on the merits of her First Amendment claim.” She also showed a likelihood of success on the merits of her heckler’s veto theory. While the court had “yet to apply the heckler’s veto to a limited public forum,” its application flowed logically from its First Amendment jurisprudence. As to irreparable harm, when “‘constitutional rights are threatened or impaired, irreparable injury is presumed[,]’” and the court held that defendants failed to rebut it. Remanded with instructions to issue the requested preliminary injunction.