Sobel, Mark D. Mirell, Los Angeles, CA, for plaintiff. West Westthe president of District's school board collectively defendantsand defendants' agents and employees from enforcing certain provisions of District's policy related to speech at school board meetings, was heard by the Honorable Judge Robert J. The court having taken the matter under submission, and after consideration of oral argument and all papers presented to the court, the court grants plaintiff's motion for the reasons set forth in the following opinion. Plaintiff has filed a verified complaint for injunctive and declaratory relief and damages against defendants.
The complaint seeks a declaration that:. Brown Act Brown Act. Plaintiff also filed an ex parte application for a temporary restraining order and for an order to show cause re the issuance of a preliminary injunction ening defendants and their agents and employees from enforcing against plaintiff the provisions of District's policy which permitted West, as the Board president, "to deny permission to speak in the public session portion of the Board meeting to any person who mentions, by name or mere title, any public employee of the defendant school board.
This court filed an order 1 restraining defendants and their agents, employees and successors from applying and enforcing the policy during the public forum session of Board meeting and 2 requiring defendants to appear to show cause why they should not be so ened.
Following oral argument at the hearing on the order to show cause, the parties stipulated that the temporary restraining order could be extended until August 6,and that each side would provide the court with briefing on whether the policy applied to all public comments during the public, or open, as opposed to the executive, or closed, session of all District's Board meetings, or applied only to the public comment period of such open sessions, and whether the relief requested by plaintiff encompassed comments made during the open session of Board meetings, or only encompassed comments made during the public comment period.
Having considered such further briefing, the court concludes that the policy, by its terms, applies to all public comments during open sessions of the Board meetings. The court further concludes that the relief requested by plaintiff, i. If an attempt is made to include charges or complaints against an employee in any way, the Board President will order the presentation stopped at once, and the Board meeting will continue in accordance with the established agenda.
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All charges or complaints against employees must be submitted to the Board under provisions of Board policy. If the individual willfully interrupts the meeting by refusing to comply with the warning, the Board President may authorize the removal of the individual pursuant to Government Code section On May 28,she attended an open meeting of District's Board.
This meeting included a public comment period during which citizens could comment on matters not necessarily included on the Board's meeting agenda. During the public time period allotted for her comments, plaintiff identified by name and by reference to position two District employees: David Kuzmich, principal of Vista Heights Middle School Kuzmichand David Andrews, District's superintendent Andrewsand alleged that numerous complaints brought to them by parents of children at Vista Heights Middle School went unaddressed.
As she spoke, plaintiff was informed by West that she could not mention either employee by position or by name, and that another violation of the policy would result in her removal from the meeting. Plaintiff continued her remarks and again referred to Kuzmich by position and to Andrews by position and name.
She was then physically removed from the meeting by a Riverside County sheriff's deputy at the request of West.
Once removed from the meeting, she was watched over by two sheriff's deputies to ensure that she did not attempt to go back into the meeting room. Plaintiff was the only speaker to be physically removed from the room.
Baca v. moreno valley unified school dist., f. supp. (c.d. cal. )
Although some of those who spoke after plaintiff did were warned by West not to violate the policy, they were not removed. Plaintiff states that she desires to "learn of shared concerns from other speakers and to allow them to learn of mine through use of the public comment period of the school board meeting. She states that she believes she was singled out for expulsion because of her out-spokenness and because of her political activities related to educational and other school-related issues.
The traditional criteria which must be met before a preliminary injunction will issue are: 1 strong likelihood of success on the merits; 2 possibility of irreparable injury to plaintiff if relief is not granted; 3 a balance of hardships favoring plaintiff; and 4 advancement of the public interest in certain kinds of cases. Los Angeles Memorial Coliseum Commission v.
National Football League, F. In the Ninth Circuit, a party may meet its burden by demonstrating either 1 a combination of probable success on the merits and the possibility of irreparable injury or 2 that serious questions are raised and the balance of hardships tips sharply in its favor. These are not separate tests, but the outer reaches of a single continuum. The moving party has the burden of proof on each element of either test.
County of El Dorado, F. Applying the traditional criteria for issuance of a preliminary injunction to the facts of this case, the court concludes, as discussed below, that the plaintiff has met all four criteria, and that a preliminary injunction should issue. Plaintiff has demonstrated that there is a strong likelihood that she will succeed on the merits, i.
Plaintiff contends that the policy is a prior restraint on protected expression, and as such it violates the California Constitution. Defendants suggest that plaintiff's speech "regarding child abusers and racists" is not protected by the First Amendment because it is slanderous and is a "false light utterance," and that therefore District has a right to prohibit these statements.
Defendants' Supp. Opposition, p. Neither side is correct. Plaintiff is wrong because the policy, which merely prohibits certain speech by persons already admitted to and making use of a public forum, is not a true or classic prior restraint, because it does not give a public official the power to deny use of the forum in advance of the actual expression.
Teton County School Dist. Instead, the policy is a species of censorship, i. Meese, F. Tatum, U. The California Constitution, article I, section 2 provides, in relevant part: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.
A law may not restrain or abridge liberty of speech or press. Blatty v. New York Times Co. Superior Court, 13 Cal. National Enquirer, Inc. The right of the citizen[s] to freely speak, write and publish [their] sentiments is unlimited, but [they are] responsible at the hands of the law for an abuse of that right. Superior Court, Cal.
Thus, under the California Constitution, District's Board may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory. Traditional public fora are places such as parks and streets, which historically have been used for purposes of public assembly.
Perry Educ. Perry Local Educators' Assn. A deated, as opposed to a traditional, public forum is a public forum created by government deation as "a place or channel of communication for use by the public at large Access to a deated public forum may be limited by the government if it deates public property as available only for "use by certain speakers, or for the discussion of certain subjects, Vincent, U.
Wisconsin Employment Relations Comm'n, U. Lamb's Chapel v. Center Moriches Sch. The State of California has deated certain public property for use as public fora. The Brown Act applies to school districts and to school boards.
Dixon Unified Sch. Thus, by opening school board meetings to public comment "on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body," Govt. Defendants contend that when a limited public forum is involved, the applicable standard of constitutional analysis is not the strict scrutiny or compelling interest test applied to traditional public fora, citing White v.
City of Norwalk, F. Notably, however, defendants never clearly state what test does apply when a court decides the constitutionality of a policy which regulates or prohibits certain speech in a limited public forum. Lamb's Chapel, U. Thus, in White v.
City of Norwalkthe case cited by defendants, the court held that although city officials properly could restrict public speakers to the subject matter at hand, i. Thus, contrary to defendants' contention, the applicable standard of review for testing the constitutionality of regulations of speech in a deated, limited public forum is the same standard which applies to regulation of speech in a traditional public forum.
Perry, U. This means that even in a limited public forum, before the state can enforce "[any] content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end," and that although "[r]easonable time, place and manner regulations are permissible," they must be "content-neutral, Burleigh, 4 Cal.
District's policy clearly contains content-based prohibitions on speech, despite defendants' assertions to the contrary. It forbids, at the risk of expulsion from the forum, speech which contains any "charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee.
It is difficult to imagine a more content-based prohibition on speech than this policy, which allows expression of two points of view laudatory and neutral while prohibiting a different point of view negatively critical on a particular subject matter District employees' conduct or performance. Burson v. Freeman, U. In fact, policies which attempt to suppress or burden only critical speech are regularly held to be content-based.
See, e. City of Santa Monica, F. Feminist Women's Health Center v. Blythe, 32 Cal. Notably, with one exception, defendants do not contend that these interests are "compelling.