Introduction

In Moms for Liberty – Wilson County, Tennessee v. Wilson County Board of Education (No. 24‑5056; recommended for publication, File Name: 25a0244p.06), the Sixth Circuit affirmed the denial of a preliminary injunction against three rules governing public-comment periods at a Tennessee school board. The panel (Judge Stranch for the court; Judge Thapar concurred, joined by Judge Murphy) addressed:

• a “public-interest” gatekeeping provision for last-minute, non-agenda remarks;
• a requirement that speakers state their home addresses; and
• an “abusive comments” prohibition read from the Chair’s meeting script (though not codified in board policy).

The decision offers two significant clarifications in the Sixth Circuit:

• First, even in First Amendment cases, plaintiffs must demonstrate an imminent likelihood of irreparable harm to obtain interim relief; voluntary cessation plus a binding in-court commitment not to reinstate the challenged speech rules can defeat that showing without mooting the case.
• Second, for pre-enforcement challenges to rules operating in a limited public forum that offers multiple avenues to speak, plaintiffs must make a record-based showing that they are likely to be subject to the particular rule they challenge and face a credible threat of enforcement—not merely that they plan to speak generally.

While the court declined to issue interim relief, the concurring opinion signals deep constitutional concerns with the substance of the Board’s rescinded “abusive comments” and address-disclosure requirements and its still-extant “public-interest” gatekeeping clause. The case is remanded for further proceedings.

Summary of the Opinion

The court classified the school board’s public-comment period as a limited public forum, consistent with prior Sixth Circuit precedent. Plaintiffs challenged three rules and sought a preliminary injunction.

• Public-interest provision: Plaintiffs lacked standing at the preliminary-injunction stage. Because the rule applies only to one of three avenues for public comment (last-minute, non-agenda recognition), and plaintiffs did not show they used or planned to use that route—or that the provision had ever been enforced against them—their claimed injury was not “sufficiently imminent.” Their attempt to rely on permitting-regime cases such as Forsyth County failed because they had not shown they would be subject to this gatekeeping provision.
• Address-disclosure and “abusive comments” rules: Plaintiffs showed standing via evidence of past enforcement (address disclosure against one plaintiff) and ongoing warnings (the Chair’s script repeatedly announcing both rules). But they failed to establish a likelihood of imminent and irreparable harm warranting preliminary relief because:
  • the Board removed the rules from all policies/materials over two years earlier and had not reinstated them;
  • the Board’s counsel made a binding representation at oral argument that the Board would not reinstate the rules during the litigation.
  The panel emphasized that the irreparable-harm requirement is “indispensable,” distinguishing the Supreme Court’s emergency relief in Roman Catholic Diocese (where restrictions repeatedly changed on short notice) and characterizing helpful-sounding language in Speech First as dictum that does not soften the irreparable-harm inquiry in the Sixth Circuit.

Result: The Sixth Circuit affirmed the district court’s denial of a preliminary injunction and remanded. The majority flagged that the district court should continue to monitor Article III jurisdiction over suspect claims, consistent with Murthy (Missouri v. Biden) on remand.

Analysis

1) Precedents Cited and Their Influence

• Forum doctrine:
  • Lowery v. Jefferson County Bd. of Educ. (6th Cir. 2009) and Ison v. Madison Local Sch. Dist. (6th Cir. 2021) – establish that school board public-comment sessions are limited public fora, permitting reasonable, viewpoint-neutral, and purpose-related content limits, as well as time, place, and manner rules.
  • Summum (2009), Perry (1983), Cornelius (1985) – supply the tripartite forum framework (traditional, designated, limited/nonpublic) and the applicable scrutiny levels.
  • Minnesota Voters Alliance v. Mansky (2018) – requires “objective, workable standards” for speech restrictions, cautioning against vague, standardless discretion in limited public fora.
• Standing and pre-enforcement injury:
  • Susan B. Anthony List v. Driehaus (2014) – sets the three-part test for “credible threat” pre-enforcement injury.
  • Murthy v. Missouri (2024) – at the PI stage, plaintiffs must make a “clear showing” they are likely to establish standing, tethering evidentiary rigor to the timing of relief.
  • McKay v. Federspiel (6th Cir. 2016), Online Merchants Guild (6th Cir. 2021), Fischer v. Thomas (6th Cir. 2022) – provide non-exhaustive factors for assessing a credible threat (past enforcement, warnings, ease of enforcement, refusal to disavow).
  • TransUnion LLC v. Ramirez (2021) – standing is claim-specific; not dispensed “in gross.”
• Irreparable harm and preliminary injunctions:
  • Winter v. NRDC (2008) – plaintiff must show likely, not speculative, irreparable harm.
  • Sumner County Schools (6th Cir. 2019) – irreparable harm is “indispensable” even in constitutional cases.
  • Bays v. City of Fairborn (6th Cir. 2012), Elrod v. Burns (1976) – loss of First Amendment freedoms is irreparable, but plaintiffs still must show that loss is likely and imminent.
  • Roman Catholic Diocese v. Cuomo (2020) – emergency relief granted where restrictions were repeatedly re-imposed on short notice; distinguished here because the school board had rescinded its rules years earlier and pledged not to reinstate them during litigation.
  • Speech First v. Schlissel (6th Cir. 2019) – treated here as non-controlling dictum on the interplay of merits strength and irreparable harm; the panel reaffirms that irreparable harm cannot be elided.
• Binding effect of counsel’s representations:
  • Borror Property Mgmt., LLC v. Oro Karric N., LLC (6th Cir. 2020) and Link v. Wabash R.R. Co. (1962) – a party is bound by counsel’s commitments to the court. The Sixth Circuit relied on this principle to credit the Board’s pledge not to reinstate the policies during litigation, undermining any claim of imminent irreparable harm.
• Viewpoint discrimination and civility codes (featured in the concurrence):
  • Matal v. Tam (2017), Iancu v. Brunetti (2019), Cohen v. California (1971), Rosenberger (1995) – the First Amendment protects offensive speech; rules privileging “happy talk” are suspect.
  • Youkhanna v. City of Sterling Heights (6th Cir. 2019), AFDI v. SMART (6th Cir. 2020), Ison (6th Cir. 2021) – the Sixth Circuit’s own line of cases invalidating “abusive,” “antagonistic,” or “ridicule”-based restrictions as viewpoint discriminatory.
  • Other circuits: PETA v. Tabak (D.C. Cir. 2024), White Coat Waste Project v. GRTC (4th Cir. 2022), CIR v. SEPTA (3d Cir. 2020), and the Eleventh Circuit’s Moms for Liberty – Brevard County (2024) – reinforce concerns over vague or standardless “public interest” or “off-topic” bans.

2) Legal Reasoning

The majority proceeded in two steps aligned with preliminary-injunction doctrine: (1) standing and likely success; and (2) irreparable harm. The distinctive contributions of this opinion lie in its rigorous, evidence-based approach to pre-enforcement standing in limited public fora and in its emphasis that voluntary cessation can defeat the irreparable-harm showing without mooting the case.

• Standing as a gateway to “likelihood of success”:
  • The court hewed closely to Murthy and Driehaus, requiring a “clear showing” of likely standing at the PI stage. Plaintiffs had to show their intended speech is (a) constitutionally protected; (b) arguably proscribed by the challenged rule; and (c) subject to a credible threat of enforcement.
  • Public-interest rule: Plaintiffs’ evidence failed at step (c). The rule applies only to a narrow “third avenue” for last-minute, non-agenda remarks. Plaintiffs did not show they used or planned to use this avenue or that enforcement had occurred or was threatened. Generalized chill tied to other rules was not enough. The presence of two unaffected avenues (agenda-request and agenda-item sign-up) undermined any claim of a credible threat from this particular provision.
  • Address and “abusive” rules: Past enforcement against Lemons and repeated script warnings satisfied the credible-threat requirement for standing.
• Irreparable harm is “indispensable” even in speech cases:
  • Despite standing for two rules, the Board’s voluntary repeal (more than two years earlier) and a binding, in-court promise not to reinstate during litigation defeated any showing of likely, imminent harm pending final judgment. This distinguishes Roman Catholic Diocese, where restrictions were fluid and repeatedly reimposed on short notice.
  • The panel expressly cabins any reading of Speech First that might be taken to relax the irreparable-harm showing when merits are strong—calling the favorable language “dictum” and reaffirming Sumner County Schools’ “indispensable” irreparable-harm requirement.
  • Because preliminary relief “preserves the status quo,” and the status quo here excluded the challenged rules (with a binding pledge to maintain that status), no injunction was warranted.

3) Impact

This opinion’s practical and doctrinal effects are substantial in the Sixth Circuit.

• For plaintiffs in pre-enforcement speech cases:
  • Standing demands a record-specific showing that the plaintiff will use the particular speech avenue governed by the rule and faces a credible threat of enforcement. Where multiple speech pathways exist, courts will not assume exposure to a challenged gatekeeping rule absent evidence.
  • Scripted warnings that enumerate rules can count as enforcement “warnings” supporting a credible threat. Conversely, the absence of any nexus to the challenged rule’s application can defeat standing at the PI stage.
  • Even when standing is established, voluntary cessation—and especially an on-the-record promise by government counsel not to reinstate—may foreclose interim relief by defeating the “imminent irreparable harm” showing. Plaintiffs should be prepared to rebut non-reinstatement pledges with concrete evidence of likely relapse (e.g., a pattern of flip-flops, institutional incentives, or equivocation).
• For government defendants (school boards and beyond):
  • Prospectively repealing suspect policies and formally disavowing their reinstatement during litigation can prevent preliminary injunctions even in First Amendment cases without mooting the merits. Counsel’s in-court commitments bind the entity for purposes of interim relief.
  • However, repeal does not guarantee mootness; litigants should expect courts to continue monitoring jurisdiction and to reach the merits if credible threats re-emerge or if damages claims persist.
• Substantive guidance on “civility” rules and gatekeeping (from the concurrence and precedent):
  • “Abusive,” “antagonistic,” and similar civility prohibitions are high-risk in limited public fora: they often operate as viewpoint discrimination by suppressing criticism while allowing praise. The Sixth Circuit’s cases (Ison, Youkhanna, AFDI) make this vulnerability clear.
  • Address-disclosure requirements can chill participation on contentious topics and invite as-applied challenges—especially if enforced selectively.
  • “Public interest” gatekeeping standards are vulnerable under Mansky unless cabined by objective, workable criteria. Vague terms that depend on officials’ say-so invite invalidation.

Complex Concepts Simplified

• Limited public forum: A government-created venue for certain speakers or topics (like a school board’s public-comment period). The government may limit subjects and impose reasonable, viewpoint-neutral rules tied to the forum’s purpose, plus time/place/manner limits. It may not discriminate by viewpoint.
• Viewpoint discrimination vs. content regulation: Content rules limit subject matter (e.g., only school business). Viewpoint discrimination picks sides (e.g., banning criticism but allowing praise). Viewpoint discrimination is presumptively unconstitutional even in a limited forum.
• Pre-enforcement standing: Plaintiffs can sue before being punished if they plan to engage in protected speech arguably covered by the rule and face a credible threat of enforcement. Evidence can include past enforcement, warning notices, ease of enforcement, or refusal to disavow.
• Voluntary cessation vs. irreparable harm: A defendant’s repeal of a rule may not moot a case, but it can still defeat interim relief if it removes the threat of imminent harm. Courts may credit binding commitments not to reinstate during litigation, preserving the status quo without foreclosing later merits review.
• Preliminary injunction standards: Plaintiffs must show likely success on the merits, likely irreparable harm absent relief, a favorable balance of equities, and alignment with the public interest. In the Sixth Circuit, the irreparable-harm prong remains indispensable even when First Amendment rights are implicated.

Practice Pointers

• For challengers:
  • Document exactly which speaking avenue you will use and how the challenged rule will apply. If a rule governs only one path to the podium, show you must (or will) use that path and why.
  • Gather evidence of credible threat: past enforcement incidents, official scripts or signage announcing the rule, refusals to disavow, and any pattern of reimposing similar rules.
  • To preserve the irreparable-harm argument, counter voluntary repeal with evidence of likely reinstatement (e.g., recent shifts, lack of formal policy repeal, equivocal statements, repeated toggling).
• For public bodies:
  • Adopt objective, viewpoint-neutral rules tied to meeting purpose (e.g., time limits; topic limited to school district business; decorum rules focused on disruption, not offensiveness).
  • Avoid “abusive,” “antagonistic,” “ridicule,” or other civility bans that privilege praise over criticism. Train presiding officers to enforce only disruption-based rules.
  • Reconsider address-disclosure policies; where identification is needed, consider less intrusive alternatives (name, school zone, or written contact info provided privately) to reduce chilling effects.
  • If you repeal a rule under challenge, do so formally, update all scripts/materials, and consider memorializing a non-reinstatement commitment during litigation—recognizing this does not necessarily moot the case but can defeat interim relief.

What the Concurrence Adds

Judge Thapar’s concurrence underscores that, on the merits, the Board’s rescinded “abusive” and address rules, and its “public-interest” gatekeeping, are likely constitutionally infirm:

• “Abusive” speech bans: Function as “happy-talk” codes that discriminate by viewpoint, contrary to Matal, Brunetti, Cohen, and the Sixth Circuit’s own Ison, Youkhanna, and AFDI.
• Address disclosures: Risk chilling speech on contentious issues and may be selectively enforced; courts have recognized the deterrent effect (Marshall v. Amuso cited).
• “Public interest” gatekeeping: Likely fails Mansky’s requirement for objective, workable standards, inviting viewpoint or content-based manipulation of who gets to speak in the moment.

The concurrence signals that if the Board were to reinstate its policies—or if plaintiffs can establish standing to challenge the “public-interest” provision—prompt interim relief could be appropriate.

Conclusion

Moms for Liberty delivers two notable precedential clarifications in the Sixth Circuit:

• Irreparable Harm: The requirement remains indispensable for preliminary injunctions, including in First Amendment cases. Voluntary repeal coupled with a binding non‑reinstatement pledge can defeat the showing of imminent harm without mooting the case, distinguishing scenarios like Roman Catholic Diocese.
• Standing in Limited Public Fora: When a challenged rule applies only to one of multiple speaking avenues, plaintiffs must show they will be subject to that specific rule and face a credible threat of enforcement. Generalized plans to speak, or chill attributable to other rules, will not suffice at the PI stage under Murthy and Driehaus.

Although interim relief was denied, the concurring opinion—and the Sixth Circuit’s existing jurisprudence—strongly caution government bodies that “civility” bans targeting “abusive” or “antagonistic” speech and vague “public interest” gatekeeping are on thin constitutional ice. On remand, the district court will continue to assess jurisdiction and, if appropriate, reach the merits. For school boards and similar public bodies, the safest course is to craft narrow, objective, disruption-focused rules that protect robust public participation without policing viewpoints.