Many local governments and school boards have struggled with how to maintain decorum during public comment opportunities they provide and keep the focus on local concerns within the power of the local government to do something about.
Policies limiting public comment at meetings of elected officials can be helpful, but they can also generate litigation if not carefully crafted. Fortunately, as recent case law shows, well-prepared defensive measures can be effective in defeating motions for preliminary injunctions.
Nobody likes to be verbally attacked, but the First Amendment protects the right of the people to speak honestly, even harshly, to public officials at all levels. Sometimes speakers at public forums will use the opportunity to talk about things that the elected body has no power to address or has delegated to staff to handle
The Moms for Liberty chapter in Wilson County, Tennessee, and two of its members filed suit against the Wilson County Board of Education challenging the way it handled public comment. The Board of Education had a written policy on receiving public comment at Board of Education meetings and a separate statement that the Chair of the Board frequently read at the start of public comment time. In March of 2023, the plaintiffs sought a preliminary injunction against two parts of the Board of Education’s policy and one part of the Chair’s statement, namely –
- A policy requirement that persons who did not sign up 10 days in advance and who wanted to speak on a non-agenda topic had to get a Board of Education member to agree that the comments were “in the public interest,”
- A policy requirement that speakers state their home address at the beginning of their remarks, and
- A requirement stated in the Chair’s separate statement that speakers refrain from “abusive” remarks against Board of Education members, the Board as a whole, the Director of School, or any school employee.
While the case was pending in the Federal District Court, the Board of Education amended its policy to remove the “home address” requirement and removed the “abusive remarks” language from the Chair’s statement. The District Court denied the motion for preliminary injunction, so the plaintiffs filed an appeal with the Federal Circuit Court of Appeals for the Sixth Circuit, which issued a unanimous opinion on September 9, 2025.
The Federal Circuit Court of Appeals upheld the denial of the preliminary injunction. It held that the public comment section of a public body meeting is a “limited public forum” for purposes of First Amendment law. The court ruled:
School boards are permitted to set reasonable, viewpoint-neutral limits on the subject matter of and the process by which members of the public may provide comment, as well as on the time, place, and manner of said comments. Otherwise, members of the public would be free to raise idiosyncratic, personal complaints and air irrelevant grievances—thereby derailing or delaying a school board’s work, frustrating the purpose of the meeting, and “deny[ing] other citizens the chance to make their voices heard.” In short, the First Amendment does not provide a right to commandeer school board meetings.
The Court then turned to the question of whether the plaintiffs had alleged a credible threat that the “public interest” provision would be enforced against them. The Court found that the plaintiffs did not allege a credible threat. The plaintiffs’ strongest allegation was that one of the plaintiffs had contacted a Board member for permission to speak on a non-agenda item – but the Board member granted permission to speak. The Court found that plaintiffs had also failed to allege facts supporting a claim that their free speech rights were “chilled” by the “public interest” provision of the Board’s policy. Because the plaintiffs failed to show a “credible threat of enforcement,” they did not have standing to bring a claim based on the “public interest” provision.
Plaintiffs did establish standing on the “home address” requirement and the “abusive remarks” provision, but the Court found that they had not shown a likelihood of immediate and irreparable harm that would justify a preliminary injunction. Although the Court did not consider the Plaintiffs’ claims moot, the Court did find that it was unlikely that Plaintiffs would suffer immediate and irreparable harm to their First Amendment rights without a preliminary injunction. It reached this conclusion by finding that the Board had rescinded the rules in question two years earlier and had not reinstated them and by noting that the Board’s attorney had committed to not reinstitute the rules in question during the litigation.
The Circuit Court remanded the case to the District Court for further rulings, at which point the Plaintiffs will presumably seek a permanent injunction, monetary damages, and attorney’s fees.
Takeaway for Local Government Attorneys and Litigators
This case underscores two practical lessons. First, policies limiting public comment must be carefully drafted to avoid constitutional pitfalls and potential litigation. Second, even when challenged, governments can take corrective action and build a strong record to successfully defend against motions for preliminary injunctions.
