Case: 2:22-cv-01377-ALM-EPD Doc #: 2 Filed: 03/07/22 Page: 1 of 14 PAGEID #: 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ASHLEY RYDER : Case Number: 2:22-cv-10377

:
: Judge:
:
Plaintiff, :
-vs- :
:
BIG WALNUT LOCAL SCHOOLS :
:
:
Defendant. :

PLAINTIFF ASHLEY RYDER’S MOTION FOR TEMPORARY RESTRAINING

ORDER AND PRELIMIARY INJUNCTION

Plaintiff Ashley Ryder moves this Court under Civ. R. 65 for a temporary

restraining order and preliminary injunctive relief. A Memorandum in Support is

attached.

Respectfully submitted,

/s/ Matt Miller-Novak

Matt Miller-Novak, Esq. (0091402)
Barron, Peck, Bennie, &
Schlemmer, Co. LPA
3074 Madison Road,
Cincinnati, OH 45209
Phone: 513-721-1350
Fax:513-721-2301
MMN@BPBSLaw.com

And,

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/s/ Steven C. Davis

Steven C. Davis, Esq. (0065838)
Barron, Peck, Bennie, &
Schlemmer Co. LPA
3074 Madison Rd,
Cincinnati, OH 45209
Phone: 513-721-1350
Fax: 513-721-2301
SCD@BPBSLaw.com

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MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION1

This is a case about a School Board and its President that utilizes unconstitutional

public participation rules to silence criticism in violation of the First Amendment of the

United States Constitution. Moreover, Defendant Big Walnut Local Schools Board of

Education (“Defendant”) has so brashly announced its intent to continue to silence

criticisms. Preliminary injunctive relief is required to reign in Defendant’s rules, as well

and its Board President’s retaliation against his critics, like Plaintiff Ashley Ryder

(“Ryder”).

The facts here are not that complex. Defendant is a School Board located in

Delaware County, Ohio. Defendant has public meetings. Defendant has public

participation rules for those meetings that provide the Board President, Doug Crowl

(“President” or “Crowl”), the unbridled discretion to silence speech he finds offensive.

The public participation rules expressly state the following under Policy 0169.1(I):

I. The presiding officer may:

1. prohibit public comments that are frivolous, repetitive,

and/or harassing;

2. interrupt, warn, or terminate a participant's statement

when the statement is too lengthy, personally directed,
abusive, off-topic, antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that

person does not observe reasonable decorum;

4. request the assistance of law enforcement officers in the

removal of a disorderly person when that person's conduct
interferes with the orderly progress of the meeting;

1 All facts in this Complaint rely upon the Verified Complaint as contemplated under Civ. R. 65.

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5. call for a recess or an adjournment to another time when

the lack of public decorum so interferes with the orderly
conduct of the meeting as to warrant such action;

6. waive these rules with the approval of the Board when

necessary for the protection of privacy or the administration
of the Board's business. (Emphasis added).

Thus, the Rules silence speech that the Board President considers “personally directed,”

“abusive,” or “antagonistic.”

Ryder is a local resident of Defendant’s District who is interested in local school

board policies and decisions. Ryder is a critic of Crowl. In addition, Ryder is a public

critic of other school board members that campaigned with Crowl. Ryder attended

Defendant’s February 17, 2022, Board of Education meeting.

Ryder spoke during Defendant’s public participation time. 2 Ryder's presentation

was critical of certain board members views on mental health services within the school

district. Ryder was reading from a prepared statement. Ryder did not scream or make

any physical threats of violence. Ryder remained at the lectern during her presentation.

Ryder began to criticize the Defendant Board for lying to its public.

At this point, President Crowl interrupted Ryder, and told her that she cannot

“defame” the Defendant Board’s members because she was calling them “liars.” Crowl

further accused Ryder of personally attacking Defendant’s members. Crowl then told

Ryder to “zip it” and explained that her criticisms were not permissible. Crowl then told

Ryder she was finished, ordered her to leave, and he would not let her finish her

statement.

2 See https://www.bwls.net/BWLSSchoolBoardVideo.aspx at or about 1:20.

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Crowl was not finished after silencing Ryder’s speech. Indeed, Crowl continued to

chill the rest of the public’s criticisms with an additional threatening speech after Ryder

left the lectern. Crowl told the public that “public participation” is only for the public “to

explain [its] position.” Crowl explained that the public may not make “accusations” or

“call names.” Crowl continued that “any personal attacks, name calling . . . [he] will call

out.” In other words, Crowl made it clear that he will silence any public criticisms of

Defendant’s members, as well as any criticisms that include “name calling.”

Thus, Defendant’s Policy empowers the Board President to remove any public

speaker who dares criticize a Board member’s positions, or veracity. Crowl used

Defendant’s content-based policy to silence Ryder’s criticisms of himself and his fellow

members on February 17, 2022. Crowl also cited this content-based policy to threaten

and chill the expression and criticisms of other members in the public during his speech

following his removal of Ryder.

II. LAW AND ARGUMENT

Defendant’s Policy and actions are unconstitutional, and this Court should enjoin

both Defendant’s unconstitutional conduct, and their viewpoint-based policies. In

deciding to grant a preliminary injunction, courts should evaluate: (1) whether a plaintiff

has a strong likelihood of success on the merits of this action; (2) whether a plaintiff would

suffer irreparable injury without the injunction; (3) whether issuing the injunction would

cause substantial harm to others; and (4) whether the public interest would be served by

issuing the injunction. Blue Cross & Blue Shield Mut. of Ohio v. Columbia/HCA

Healthcare Corp., 110 F.3d 318, 322 (6th Cir. 1997). These “are factors to be balanced,

not prerequisites that must be met.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.

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2003). The degree of proof necessary for each factor depends on the strength of the other

factors. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 657 (6th Cir. 1996).

A. Ryder is Likely to Succeed on the Merits.

1. Recent Supreme Court precedent invalidates Defendant’s Policy and actions.

As the Supreme Court recently held, “[g]iving offense is a viewpoint,” Matal v.

Tam, 137 S.Ct. 1744, 1763 (2018), and viewpoint-based regulations cannot be salvaged for

constitutional purposes by a viewpoint-neutral justification. See Reed v. Town of Gilbert,

576 U.S. 155, 165-66 (2015) (holding that “an innocuous justification cannot transform a

facially content-based law into one that is content neutral”). Restrictions on speech within

a limited public forum of the government’s creation must satisfy two First Amendment

standards to pass muster: (1) the restriction must be reasonable in light of the purpose

for which the forum was created; and (2) the restriction must not discriminate based on

viewpoint. Rosenberger v. Rectors and Visitors of University of Virginia, 515 U.S. 819,

829-30 (1995). With respect to the latter standard, it is a bedrock principle of

constitutional law that the government may not regulate speech based on its substantive

content or the message it conveys. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96

(1972). Discrimination against speech because of its message is presumed to be

unconstitutional. Rosenberger v. Rectors and Visitors of University of Virginia, 515 U.S.

819, 828 (1995) (citing Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641–3

(1994)).

It is black-letter law that content- and viewpoint-based restrictions on expression

are analyzed under strict scrutiny, which places the burden on the government to justify

its restriction. See, e.g., Reed, 576 U.S. at 171. Content-based restrictions are presumed

unconstitutional and only upheld when the government establishes that the rules impose

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the least restrictive means necessary to achieve a compelling government interest.

McCullen v. Coakley, 573 U.S. 464, 478 (2014). While the government does retain some

interest in an orderly meeting, that is interest is hardly compelling. See, e.g., Zapach v.

Dismute, 134 F.Supp.2d 682, 692 (E.D. Pa. 2001) (cataloguing cases holding that

government interest in orderly meetings is legitimate and substantial, but not

compelling). This is especially true when there is a three-minute limit on speech,

minimizing the duration of any critical or opposing comments. See Theryerl v.

Manitowac Cty., 41 F.Supp.3d 737, 744 (E.D. Wisc. 2014) (“it should go without saying

that the government’s interest in prohibiting a minute or two of repetitive speech is not a

‘compelling’ one.”). In fact, viewpoint discrimination is so offensive to the First

Amendment that courts have held it unconstitutional even in non-public forums. See,

e.g., Burnham v. Ianni, 119 F.3d 668, 676 (8th Cir. 1997) (en banc) (holding that it is not

“constitutionally valid” to curtail speech in a limited public forum simply because “other

persons on the [] campus object[] to [the speaker’s] viewpoint”).

While not in the context of limited public forums, the Supreme Court’s three most

recent pronouncements on content and viewpoint discrimination – Reed, 576 U.S. 155;

Matal, 137 S.Ct. 1744; and Iancu v. Brunetti, 139 S.Ct. 2294, 2294 (2019) – further

hamper the government’s ability to censor speech based on its offensiveness. In Reed,

the Supreme Court struck down a sign ordinance which included exceptions and variable

standards depending on whether the sign was political, elections-oriented, or bore some

other non-commercial message. Reed, 576 U.S. at 159-63, 172. The Court found that the

ordinance was content-based and therefore subject to strict scrutiny. Id. at 171 (citing

Sorrell v. IMS Health Inc., 131 S.Ct. 2653 (2011)). The Court expressly stated the

following:

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Government regulation of speech is content based if a law applies to

particular speech because of the topic discussed or the idea or message
expressed. This commonsense meaning of the phrase “content based”
requires a court to consider whether a regulation of speech “on its face”
draws distinctions based on the message a speaker conveys. Some facial
distinctions based on a message are obvious, defining regulated speech by
particular subject matter, and others are more subtle, defining regulated
speech by its function or purpose. Both are distinctions drawn based on the
message a speaker conveys, and, therefore, are subject to strict scrutiny.
Reed, 576 U.S. at 163-64 (internal citations omitted).

The government therefore cannot rely upon a content-neutral motivation or a

justification unrelated to a speaker’s message to save a content-based restriction on

speech. Id. at 165-68. Because the inquiry into whether a law, on its face, imposes

content-based regulations is separate from the question of the law’s justification, “[a] law

that is content based on its face is subject to strict scrutiny regardless of the government's

benign motive, content-neutral justification, or lack of ‘animus toward the ideas

contained’ in the regulated speech.” Id. at 165 (citing Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 429 (1993)).

But the Court did not stop at Reed. In two more recent opinions, the Court

continued its mission to eradicate confusion in the lower courts between a law’s impact

on speech and its legislative motive. First, in Matal, 137 S.Ct. 1744, the Court invalidated

a prohibition on the issuance of trademarks that disparage living or dead persons. Id. at

1751. While the Court noted the unique nature of trademark protection, which confers

governmental protection on private expression for a fee, it heavily analogized to limited

public forum case law in analyzing the viewpoint-based nature of the restriction. Id. at

1761-64. As a starting point, the Court imposed broad restrictions on the regulation of

viewpoints. Id. at 1763. And the disparagement restriction, it noted, discriminates based

on viewpoint, because causing offense is itself a viewpoint. Id.

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Next, in Iancu v. Brunetti, 139 S.Ct. 2294 (2019), the Court prohibited viewpoint-

based judgments that separate speech based on the message it conveys, even if no speech

is silenced as a result. There, the Court invalidated the Lanham Act’s prohibition against

the registration of trademarks deemed “immoral or scandalous.” Id. at 2297. Brunetti, a

clothing artist, experienced difficulties when attempting to register the trademark

“FUCT,” because the expression was deemed offensive, misogynistic, depraved, and even

violent on review. Id. at 2297-98. The Court held that the terms “immoral” and

“scandalous” are viewpoint-based restrictions because the terms permit speech that

complies with society’s sense of morality while barring speech that defies society’s sense

of morality. Id. at 2299. In the Court’s view, regulations of this sort that discriminate

against speech based on the ideas it conveys are egregious and presumptively

unconstitutional. Id. (citing Rosenberger, 515 U.S. at 829-30).

Taken together, Reed, Matal, and Iancu require a threshold, robust inquiry into

the impact of a speech regulation on viewpoint. This inquiry must occur without regard

to why a particular government agency may have adopted the regulation and must focus

solely on whether the restriction treats speech differently based on its message. This is so

regardless of whether the government is restricting speech, as it was in Reed, or enabling

speech, as it was in Matal and Iancu.

2. The Sixth Circuit’s recent precedent invalidates Defendant’s Policy and actions.

Following the Supreme Court’s clear pronouncements in Matal, Iancu, and Reed,

the Sixth Circuit Court of Appeals issued two significant decisions clarifying the hallmarks

of viewpoint discrimination in speech restrictions in public forums. The first such case

was AFDI v. Sub. Mobility Auth. for Regional Transp., 978 F.3d 481, 498-504 (6th Cir.

2020). At issue in AFDI was the constitutionality of a restriction, applicable to public bus

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stops, on “political” advertisements and ads bringing “scorn or ridicule” to a particular

group. AFDI, 978 F.3d at 485. In striking down both provisions, the Sixth Circuit made

several key observations about viewpoint neutrality and reasonable regulation of

nonpublic forums. First, the Sixth Circuit held the ban on “political” advertisements to

be unreasonable, given the lack of clarity on what ads are “political” and how the term

should be applied. Id. at 497. To be constitutional, restrictions on speech in nonpublic

forums must offer a “sensible basis for distinguishing what may come in from what must

stay out” and must be “capable of reasoned interpretation.” Id. at 494 (citing Minnesota

Voters Alliance v. Mansky, 138 S.Ct. 1876, 1888 (2018)). This is so because laws that vest

unrestrained or unguided discretion in government officials open up the possibility of

haphazard enforcement, subjective censorship, and abuse. Id. at 497. Because the term

“political” lacked a commonly understood meaning, and because the ban lacked

discernable standards for what kinds of advertisements would trigger the prohibition, the

regulation was fatally unreasonable. Id.

Next, the Sixth Circuit held the “scorn or ridicule” provision to be impermissibly

viewpoint-based. Id. at 500. This holding reversed the decision of a previous panel that

the “scorn or ridicule” provision was constitutional. Id. at 485-6. In departing from its

initial ruling, the Sixth Circuit acknowledged that more recent decisions from the

Supreme Court on the subject of viewpoint bias necessitated reconsideration of the case.

Id. The court also noted that viewpoint bias raises “greater First Amendment red flags”

than content discrimination because it creates the risk that an entire perspective will be

eliminated from public discourse. Id. at 498. Because it can be difficult to distinguish

viewpoint bias from content discrimination, courts interpret viewpoint discrimination

broadly and find a law to be impermissibly viewpoint-based even when it targets general

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or imprecise viewpoints. Id. at 499 (citing Matal, 137 S.Ct. at 1763 (Alito, J., opinion)).

The ban on advertisements creating “scorn or ridicule” was such a restriction. Id. at 500.

In striking down the “scorn or ridicule” provision, the Sixth Circuit rejected two

counterarguments by the government. First, the court denounced the government’s

reliance upon a pre-Matal case upholding a ban on “demeaning or disparaging ads” as

non-viewpoint-based, because that case embodied logic that Matal rejected. Id. at 501.

Next, the court declined the government’s invitation to limit Matal and Iancu to

situations in which the government subsidizes or confers a benefit on speech. Id. Because

Matal and Iancu both address the presence of viewpoint bias and its impacts on speech,

the Sixth Circuit deemed those cases to be relevant to viewpoint discrimination occurring

in the context of public forums as well. Id.

Shortly after it decided AFDI, the Sixth Circuit issued Ison v. Madison Local School

Dist., 3 F.4th 887 (6th Cir. 2021).3 In Ison, the court considered whether prohibitions on

“antagonistic,” “abusive,” and “personally directed” speech at school board

meetings were unconstitutionally viewpoint-based. Id. at 893. (emphasis added).

Holding in the affirmative, the court credited the dictionary definitions and common

meaning of the words in observing that they essentially prohibited speech that offended

or was in opposition to the school board. Id. at 894-5. And it held that Matal and Iancu

controlled the analysis with regard to First Amendment viewpoint discrimination. Id.

See the following excerpt:

The antagonistic restriction, by definition, prohibits speech opposing the

Board. See Antagonistic, Merriam-Webster ("showing dislike or
opposition"). And abusive prohibits "insulting" language, see Abusive,
Merriam-Webster ("harsh and insulting"), with "personally directed,"
meaning simply abusive speech directed at one person, per the Board's

3
Ryder’s Counsel, Matt Miller-Novak was Counsel for Plaintiffs in Ison.
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interpretation. These terms plainly fit in the "broad" scope of impermissible

viewpoint discrimination because, like in Matal, Iancu, and American
Freedom Defense Initiative, they prohibit speech purely because it
disparages or offends. Id. at 894, citing, Matal, 137 S. Ct. at 1763.

The court then concluded that the board president in Ison unlawfully silenced the public

speaker because he did so in reliance on unconstitutional public participation rules. Id.

at 895.

Taken together, AFDI and Ison stand for the proposition that terms used to limit

speech in public forums will be afforded their dictionary meaning in determining whether

they unlawfully restrict viewpoints and that the prohibition of speech that offends or

upsets the government is itself a form of viewpoint discrimination that violates the First

Amendment.

3. Defendant’s actions here are unlawful as a matter of law.

Precisely like Ison, Defendant’s public participation policy regulates speech that is

“antagonistic,” “abusive,” and “personally directed.” Like Ison, Defendant’s Board

President also silenced criticism that he could not handle based upon these

unconstitutional rules. Indeed, Board President Crowl expressly stated that neither

Ryder nor other members in the audience were permitted to make comments that were

“personally directed.” In addition, it is evident from his own comments in the video that

Crowl could not accept or handle Ryder’s viewpoint or allegations that the Board’ was

acting in a dishonest manner. Indeed, he expressly noted that he was silencing her

because she stated that he and a few of his fellow Board members lied to the public.

There is no potential argument “antagonistic,” “abusive,” and “personally directed”

are not unconstitutional regulations of speech within the Sixth Circuit. And there is no

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reasonable argument that using these rules to silence critics is anything other than an

unconstitutional act. Ryder is extremely likely to succeed on the merits of her Action.

B. Ryder and the Public Need Injunctive Relief.

After unlawfully silencing Ryder’s criticisms, Defendant was not satisfied. Indeed,

Board President Crowl then decided to threaten the entire listening public that he will

silence them if they dare criticize members of Defendant’s Board. Defendant clearly is

not finished chilling protected criticisms.

C. Third Parties Will Not Suffer any Harm.

Third parties not before this Court will not suffer if this Court issues an injunction.

On the contrary, the other members of Defendant’s public need this injunction, so they

may safely criticize Defendant’s intolerant regime.

D. The Public Welfare Demands Injunctive Relief.

As the Sixth Circuit has observed, the preservation of constitutional rights is always

in the public interest. G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071,

1079 (6th Cir. 1994). For this reason, it is in the public’s interest to enjoin such blatant

First Amendment violations.

III. CONCLUSION

Accordingly, this Court should enjoin the enforcement of Defendant’s public

participation Policy and also enjoin Defendant from continuing to silence Ryder and the

public based upon their viewpoints in violation of the First Amendment of the United

States Constitution.

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Respectfully submitted,

/s/ Matt Miller-Novak

Matt Miller-Novak, Esq. (0091402)
Barron, Peck, Bennie, &
Schlemmer, Co. LPA
3074 Madison Road,
Cincinnati, OH 45209
Phone: 513-721-1350
Fax:513-721-2301
MMN@BPBSLaw.com

/s/ Steven C. Davis

Steven C. Davis, Esq. (0065838)
Barron, Peck, Bennie, &
Schlemmer Co. LPA
3074 Madison Rd,
Cincinnati, OH 45209
Phone: 513-721-1350
Fax: 513-721-2301
SCD@BPBSLaw.com

CERTIFICATE OF SERVICE

Plaintiff’s Counsel served this on Defendant via electronic mail on March 7, 2022.

/s/ Matt Miller-Novak

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