Appellate Forfeiture in Public-Meeting Speech Cases: Failure to Preserve and Challenge Independent Grounds Requires Affirmance

I. Introduction

Case: Spiehs v. Larsen, No. 25-3061 (10th Cir. Sept. 1, 2026) (Order and Judgment).
Parties: Justin Spiehs (Plaintiff–Appellant) vs. City Mayors Lisa Larsen and Courtney Shipley, and the Board of City Commissioners of Lawrence, Kansas (Defendants–Appellees).
Setting: Two Lawrence City Commission meetings from which Spiehs was removed during public comment.

The appeal arose from removals based on City Resolution 7451, which imposed (1) a “germane” requirement tying comments to the governing body’s business and (2) a “decorum” rule barring disruptive conduct (including “unreasonably loud” or “repetitious” speech and speech that “substantially interrupt[s]” City business).

Although the underlying dispute was framed in constitutional terms (First Amendment/public-forum doctrine, content/viewpoint discrimination, retaliation, equal protection, and municipal/official-capacity liability), the Tenth Circuit’s disposition turned largely on appellate procedure: preservation, adequate briefing, and the requirement to challenge each independent ground supporting the judgment.

II. Summary of the Opinion

The Tenth Circuit affirmed the district court’s judgment. The court held that because the district court treated the “germane” and “decorum” standards as independent grounds supporting Spiehs’s removals, Spiehs had to successfully challenge both grounds on appeal. He did not adequately develop or preserve a challenge to the decorum standard; therefore, he could not obtain reversal even if he had arguments about the germane standard.

The court also rejected Spiehs’s attempt to revive previously dismissed claims via a pretrial order, affirmed summary judgment on retaliation and equal protection (class-of-one) theories, and held that the official-capacity claims failed absent an underlying constitutional violation by the mayors.

III. Analysis

A. Precedents Cited

1. Lebahn v. Nat'l Farmers Union Unif. Pension Plan, 828 F.3d 1180 (10th Cir. 2016)

This was the controlling procedural principle for the appeal. The panel invoked Lebahn for the rule that When a district court dismisses a claim on two or more independent grounds, the appellant must challenge each of those grounds. Applying that rule, the panel treated the decorum standard as a separate, sufficient basis for removal; because Spiehs did not properly challenge it, affirmance followed regardless of disputes about “germaneness.”

2. United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019)

Leffler supplied two linked requirements: (i) an argument must be raised to or considered by the district court to be pursued on appeal, and (ii) the opening brief must demonstrate preservation with precise record citations (reinforced by Tenth Circuit briefing rules). The panel relied on Leffler to fault Spiehs (represented by counsel) for failing to show where any decorum-based constitutional arguments were preserved below.

3. Tenth Circuit Rule 28.1(A)

The court used this rule to underscore that preservation is not assumed; the appellant must cite the “precise references in the record” showing the issue was raised and ruled upon. The lack of such citations was decisive in deeming the decorum challenge inadequately presented.

4. Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011)

Richison defined the “end of the road” consequence: if an argument was not raised below, the appellant must request plain-error review on appeal; failing to argue plain error forfeits the claim. The panel applied Richison to Spiehs’s failure to request plain-error review for any unpreserved decorum arguments.

5. Requena v. Roberts, 893 F.3d 1195 (10th Cir. 2018)

The court invoked Requena to narrow the appeal’s remedial scope: because Spiehs did not address injunctive or declaratory relief on appeal, only damages theories were considered.

6. VDARE Found. v. City of Colo. Springs, 11 F.4th 1151 (10th Cir. 2021)

VDARE Found. supplied the retaliation element that the plaintiff must have “engaged in constitutionally protected activity.” The district court found Spiehs’s meeting speech unprotected because it violated a lawful policy; the panel affirmed because Spiehs failed to overturn the policy’s application (again, chiefly due to the unchallenged decorum ground).

7. Fenn v. City of Truth or Consequences, 983 F.3d 1143 (10th Cir. 2020)

The panel used Fenn for the rule that a municipality cannot be liable on an official-capacity theory “where there was no underlying constitutional violation by any of its officers.” With no demonstrated constitutional violation by either mayor, the official-capacity claims failed as a matter of law.

8. District of Kansas Decisions

  • Spiehs v. Larsen, 728 F. Supp. 3d 1190 (D. Kan. 2024): framed the claims (facial vagueness and forum challenges; individual-capacity as-applied theories; retaliation; equal protection; compelled speech; “handclapping” claims) and dismissed several at the pleading stage.
  • Spiehs v. Larsen, No. 23-4107-JAR-BGS, 2025 WL 721946 (D. Kan. Mar. 6, 2025): supplied the undisputed meeting facts and the district court’s ultimate reasoning on summary judgment.

B. Legal Reasoning

1. Independent grounds and the dispositive role of the “decorum” standard

The panel did not decide the case by conducting a full public-forum or First Amendment analysis of the germane rule. Instead, it accepted the district court’s characterization that Spiehs’s removals rested on two independent violations—germane and decorum—so Lebahn required a successful attack on both.

The court then found Spiehs’s decorum challenge procedurally defective: the opening brief did not show preservation with record citations, did not answer Defendants’ forfeiture arguments (no reply brief), and did not request plain-error review for any unpreserved points. That chain—Leffler + Rule 28.1(A) + Richison—made affirmance essentially mandatory.

2. Pretrial order did not revive dismissed claims

Spiehs argued that an intervening pretrial order resurrected claims previously dismissed at the motion-to-dismiss stage. The panel avoided a broad ruling on whether a pretrial order can revive claims; it held only that this pretrial order did not do so because it “tracks” the dismissal order and contains no revival language. The court also rejected Spiehs’s characterization that dismissal was limited to “handclapping,” noting the district court dismissed additional theories (including vagueness and content/viewpoint discrimination as pleaded).

3. Retaliation fails without protected activity

Retaliation required constitutionally protected speech. Because the court treated the City’s meeting rules as lawfully enforceable against Spiehs on this record—and because Spiehs failed to overturn the independent decorum basis—his “curtailment” theory could not satisfy the protected-activity element under VDARE Found.

4. Equal protection “class of one” argument was both inconsistent and unpreserved

The district court applied rational-basis review and found a rational basis for the mayors’ actions. On appeal, Spiehs argued the wrong scrutiny level had been used, but the panel faulted him for failing to show he made that argument below and noted his complaint itself embraced rational basis as the proper standard. That mismatch undermined appellate review.

5. Official-capacity claims fail absent an underlying violation

With no established constitutional violation by the mayors, municipal/official-capacity liability could not proceed under Fenn. This reflects a common sequencing principle in constitutional tort litigation: derivative municipal claims collapse if the underlying officer conduct is not unconstitutional (at least on the theories pursued).

C. Impact

  • Procedural takeaway for public-meeting speech litigation: Even where the dispute appears to center on the First Amendment, appellate outcomes may turn on preservation and briefing. Litigants must identify each independent ground supporting removal (e.g., “germane” and “decorum”) and challenge each with preserved, record-cited arguments.
  • Incentive for governments to plead/enforce multiple meeting rules: Where removals can be justified on more than one neutral rule (topic relevance plus disruption), an appellant’s failure to defeat all bases can foreclose relief.
  • Pretrial orders as cleanup instruments, not silent revival tools: The opinion signals skepticism toward claims of “revival by implication,” at least where the pretrial order mirrors earlier dismissals.
  • Municipal liability remains downstream: The reaffirmation of Fenn keeps official-capacity exposure tightly linked to proving an underlying constitutional violation.

IV. Complex Concepts Simplified

  • “Germane” standard: A rule limiting public comment to topics related to the body’s business or the agenda item being discussed.
  • “Decorum” standard: A rule regulating disruptive manner of speech (volume, repetition, fighting words, privacy invasions, or interruptions that halt business), typically analyzed as a time/place/manner-type restriction in limited public-comment settings.
  • Independent grounds for judgment: If either of two reasons is sufficient to uphold the result, the appellant must defeat both to win on appeal.
  • Preservation: You generally cannot raise a new legal theory on appeal; you must have presented it to the trial court. Appellate briefs must point to the exact record locations showing this.
  • Plain-error review: A narrow safety valve for unpreserved issues, but only if the appellant asks for it and satisfies the demanding standard.
  • Class-of-one equal protection: A claim that the plaintiff was intentionally treated differently from similarly situated people without a rational basis—typically evaluated under rational-basis review.
  • Official-capacity (municipal) liability: A way to sue the government entity via an official; often requires an underlying constitutional violation and additional municipal-liability elements, depending on the theory.

V. Conclusion

Spiehs v. Larsen is a procedural warning wrapped in a public-meeting free-speech dispute. The Tenth Circuit affirmed not by definitively endorsing or rejecting the “germane” limitation on public comment, but because the removals rested on two independent grounds and Spiehs failed to preserve and properly brief a challenge to the decorum ground. The opinion reinforces that, in the Tenth Circuit, appellate success requires (1) challenging every independent basis for the judgment, (2) proving preservation with precise record citations, and (3) invoking plain error when necessary. Substantively, the ruling also confirms that retaliation, equal protection, and official-capacity theories can fail rapidly when the plaintiff cannot first establish that the officials’ enforcement of meeting rules was unconstitutional.