Undefined “Personal, Impertinent, or Slanderous” Public-Comment Bans Are Facially Overbroad, Vague, and Viewpoint Discriminatory in City Council Meetings

I. Introduction

In Merriott v. City of Bossier City (5th Cir. June 25, 2026), the Fifth Circuit reviewed the Rule 12(b)(6) dismissal of a suit brought by Weston Merriott—an online journalist—challenging a Bossier City Council “Policy” governing public comment at council meetings. Merriott alleged that the Policy and its enforcement violated the First Amendment (including overbreadth, vagueness, and viewpoint/content discrimination), that the City was liable under Monell v. Department of Social Services of City of New York, that councilmembers retaliated against him for protected speech, and that certain councilmembers violated the Louisiana Open Meetings Law (“OML”).

The dispute arose amid heated debate about a local term-limits petition. Merriott spoke multiple times at meetings, criticized council actions, questioned outside counsel’s impartiality, and was repeatedly interrupted, admonished, and threatened with removal. After one meeting, a quorum of councilmembers allegedly convened a “secret meeting” to discuss changing public-comment rules in reaction to Merriott’s remarks—conduct Merriott contended violated the OML.

The Fifth Circuit affirmed in part and reversed in part, reinstating most federal constitutional claims and portions of the OML claim, while narrowing others.

II. Summary of the Opinion

  • Facial overbreadth (First Amendment): Reinstated. The Policy’s bans on “personal,” “impertinent,” “slanderous” remarks and “becom[ing] boisterous” plausibly encompassed a substantial number of unconstitutional applications.
  • Facial vagueness (Due Process): Reinstated. The terms failed to give reasonable notice and invited arbitrary, discriminatory enforcement.
  • Viewpoint/content discrimination (First Amendment):
    • Reinstated as to bans on “personal,” “impertinent,” and “slanderous” remarks (viewpoint discriminatory, hence impermissibly content-based).
    • Affirmed dismissal as to “boisterous” being viewpoint-based (the court held it is viewpoint neutral).
  • As-applied municipal liability under Monell: Reinstated. The City’s official Policy plausibly served as the moving force behind the alleged constitutional violation when enforced through interruptions/threats of removal.
  • First Amendment retaliation (Monell): Reinstated as to retaliatory interruptions/chilling; rejected to the extent it depended on an unadopted proposal to eliminate agenda-item comment without a policymaker theory.
  • Louisiana Open Meetings Law:
    • Reinstated against Montgomery and Darby regarding the post-meeting quorum discussion/polling.
    • Affirmed dismissal as to Free (not alleged to have attended).
    • Affirmed dismissal of civil penalties (no “knowingly and willfully” allegation as required by LA. STAT. ANN. § 42:28).

III. Analysis

A. Precedents Cited (and How They Drove the Outcome)

1. Pleading posture and review

  • In re Katrina Canal Breaches Litig. and Garner v. U.S. Dep't of Lab. anchored de novo review of Rule 12(b)(6) dismissals and enactment constitutionality.
  • Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal framed “plausibility,” while Kelly v. Nichamoff required taking facts as true and drawing inferences for the plaintiff.
  • The court also relied on Clarke v. Commodity Futures Trading Comm'n to treat the repealed-and-reenacted Policy as substantively the same for review.

2. Overbreadth: threshold “appropriateness” and merits

  • The court began with the Fifth Circuit “appropriateness” limitation for overbreadth challenges from United States v. Hicks, rooted in Brockett v. Spokane Arcades, Inc. and Members of City Council of L.A. v. Taxpayers for Vincent: overbreadth is disfavored where the challenger’s rights are “coterminous” with third parties’ rights.
  • The panel held Merriott satisfied the threshold by pointing to multiple realistic applications beyond his own circumstances, tracking Seals v. McBee (allowing overbreadth when plaintiffs identify non-coterminous hypotheticals) and distinguishing Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist. (rejecting overbreadth where plaintiff alleges no additional unconstitutional applications).
  • On the merits, the court applied the modern overbreadth formulation:
    • Lowery v. Mills (overbreadth protects society from chilling effects) and Sec'y of State of Md. v. Joseph H. Munson Co.;
    • United States v. Stevens (substantial number of unconstitutional applications relative to legitimate sweep);
    • United States v. Hansen (unconstitutional applications must be “realistic, not fanciful” and substantially disproportionate).
  • To construe the Policy, the court used ordinary-meaning principles from Sebelius v. Cloer and applied them as in United States v. Perez, noting no authoritative city interpretation under Zimmerman v. City of Austin (with Voting for Am., Inc. v. Steen).
  • For each challenged term, the court relied on:
    • Acosta v. City of Costa Mesa (Ninth Circuit invalidated nearly identical “personal, impertinent, ... slanderous” council-meeting rule as facially overbroad), reinforced by the First Amendment principle in Texas v. Johnson.
    • Reeves v. McConn, applying New York Times Co. v. Sullivan, to hold that a bare ban on “slanderous” speech sweeps in constitutionally protected defamation-related speech about public officials (absent “actual malice” limits) and thus chills core speech.
    • Roy v. City of Monroe (previous Fifth Circuit skepticism of a standalone “boisterous” prohibition), and the Supreme Court’s Coates v. City of Cincinnati (invalidated “annoying” standard that depended on an officer’s subjective reaction), which the court found strongly analogous to “boisterous” untethered from objective standards.
  • The court refused to “rescue” the Policy with extra-textual narrowing constructions, citing Broadrick v. Oklahoma and Serafine v. Branaman.
  • Finally, the panel evaluated the Policy against the forum’s function using Fairchild v. Liberty Indep. Sch. Dist.: even in a limited public forum, restrictions must be reasonable in light of the forum’s purpose; the council chamber’s purpose includes debate, making broad civility bans particularly suspect.

3. Vagueness: notice and arbitrary enforcement

  • The governing vagueness standards came from Grayned v. City of Rockford and Fifth Circuit applications in McClelland v. Katy Indep. Sch. Dist. and A.M. ex rel. McAllum v. Cash.
  • Because speech is implicated, the “more stringent” standard was drawn from Medlin v. Palmer, relying on Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc. and Hynes v. Mayor and Council of Borough of Oradell.
  • On notice: the court cited Connally v. Gen. Const. Co. and emphasized that dictionary definitions do not cure subjectivity, invoking Coates v. City of Cincinnati and the (vacated but persuasive) panel reasoning in Kramer v. Price.
  • On arbitrary enforcement: the court referenced “stretch[ing] out of shape” concerns in United States v. De Bruhl and Skilling v. United States, and the need for “explicit standards” from Roark & Hardee LP v. City of Austin and Hoffman Estates, with “hopeless indeterminacy” language from City of El Cenizo v. Texas and Johnson v. United States.
  • The court distinguished Roy v. City of Monroe, which involved a broader “disturbing the peace” scheme and benefited from authoritative state-court gloss (State v. Jordan) and related guidance (Serv. Emps. Int'l Union, Local 5 v. City of Houston), none of which existed for Bossier City’s standalone “boisterous” ban.

4. Viewpoint and content discrimination in a limited public forum

  • Forum framework: the court applied Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, Fairchild v. Liberty Indep. Sch. Dist., and Chiu v. Plano Indep. Sch. Dist. to hold that in a limited public forum the government may impose content limits only if viewpoint neutral and reasonable in light of the forum’s purpose.
  • Viewpoint discrimination: the court relied on Rosenberger v. Rector & Visitors of Univ. of Va. (viewpoint discrimination as egregious content discrimination), and applied Supreme Court “offense is a viewpoint” doctrine from Matal v. Tam (with Street v. New York) and Iancu v. Brunetti.
  • The court found persuasive the Sixth Circuit’s Ison v. Madison Local School District Board of Education, which invalidated bans on “abusive, personally directed, and antagonistic speech” during board meetings as viewpoint discriminatory.
  • Reasonableness/content regulation: the court cited Minn. Voters All. v. Mansky for the requirement that the government articulate a sensible basis distinguishing allowed from prohibited speech, even without narrow tailoring in a limited public forum.
  • The court also noted—but did not follow—Steinburg v. Chesterfield County Planning Commission, where the Fourth Circuit upheld a “personal attacks” policy as content-neutral; the Fifth Circuit emphasized Bossier City’s ban on “personal remarks” was broader and fatally unbounded.

5. Municipal liability and policymaker questions under Monell

  • The core test came from Monell v. Department of Social Services of City of New York, with Fifth Circuit formulation in St. Maron Props., L.L.C. v. City of Houston and Peña v. City of Rio Grande City.
  • Importantly, the court rejected the City’s attempt to defeat Monell by pointing to charter voting rules: because Merriott challenged enforcement of an admittedly official Policy, he plausibly alleged policymaker involvement sufficient at the pleading stage.
  • The panel clarified that individual councilmembers’ enforcement discretion does not necessarily make them final policymakers, relying on Pembaur v. City of Cincinnati, Bolton v. City of Dallas, and Zarnow v. City of Wichita Falls.
  • On “moving force” causation, the court relied on Piotrowski v. City of Houston and the principle from Bishop v. Arcuri (quoting Bd. of Cnty. Comm'rs v. Brown) that when the policy itself violates federal law, it is necessarily the moving force.

6. Retaliation and chilling injury

  • The retaliation elements were taken from Keenan v. Tejeda, with the “ordinary firmness” and “curtailed speech” discussion driven by McLin v. Ard.
  • The court recognized self-censorship as a plausible injury, analogizing to chilling-effect standing cases Speech First, Inc. v. Fenves and Susan B. Anthony List v. Driehaus.

7. Louisiana Open Meetings Law: “meeting,” quorum, and polling

  • The court applied the OML statutory definitions (LA. STAT. ANN. § 42:13) and held Merriott plausibly alleged a “meeting” because a quorum convened to deliberate or at least receive information on changing public-comment rules.
  • It rejected the “chance meeting/social gathering” safe harbor (§ 42:13(B)) because the complaint alleged purposeful discussion and informal polling.
  • For “polling,” the court relied on Louisiana Attorney General guidance (La. Atty. Gen. Op. No. 12-0177) and deferred under Zimmerman v. City of Austin.
  • The “technical violation” defense was distinguished using Louisiana cases Rushing v. Se. La. Univ. and Daigre v. Terrebonne Ass'n for Retarded Citizens, both of which involved plaintiffs who had notice/presence; this case alleged secrecy and lack of notice.
  • The court dismissed civil penalties for failure to plead “knowingly and willfully” participation required by § 42:28, invoking abandonment principles from Duncan v. Wal-Mart La., L.L.C..
  • The court rejected reliance on Brown v. East Baton Rouge Parish School Board as inapposite and noted Pittman v. Washington Parish Reservoir District of State found no violation at all.

B. Legal Reasoning: What the Fifth Circuit Actually Did

1. The Policy was treated as nearly boundless because it lacked definitions and limiting standards

The court’s overbreadth and vagueness holdings share a single core insight: without objective definitions or narrowing standards, the Policy effectively made the permissibility of speech depend on officials’ subjective reactions—whether they feel criticized, offended, or displeased by a speaker’s tone and content. That structure is constitutionally perilous in any setting, and especially in a forum designed to host public debate about government.

2. Overbreadth: “substantial unconstitutional applications” in relation to legitimate sweep

The City plainly has legitimate authority to enforce decorum—e.g., preventing disruptions that interfere with conducting business. But the court concluded the Policy’s operative phrases (“personal,” “impertinent,” “slanderous,” “boisterous”) sweep vastly beyond that legitimate core, reaching protected criticism and debate about public officials. The Fifth Circuit emphasized that city council debate is precisely where New York Times Co. v. Sullivan’s “uninhibited, robust, and wide-open” principle matters most.

3. Vagueness: subjectivity equals inadequate notice and invites selective enforcement

The panel treated the Policy as failing both vagueness prongs. It did not meaningfully tell speakers what they may not say (notice), and it lacked explicit enforcement standards (arbitrary enforcement). The court rejected the argument that dictionary definitions suffice where the terms remain inherently subjective and dependent on the listener’s sensibilities, invoking Coates v. City of Cincinnati.

4. Viewpoint discrimination: bans on “personal/impertinent/slanderous” remarks suppress disfavored criticism

The court held the bans on “personal,” “impertinent,” and “slanderous” remarks plausibly discriminate based on viewpoint because they function to suppress disparaging, insulting, or accusatory criticism of officials—“giving offense” being a viewpoint under Matal v. Tam. That rendered the restrictions unreasonable and unconstitutional in the limited public forum. However, the panel treated “boisterous” as viewpoint neutral because it targets manner/volume/rowdiness rather than ideas—though it still failed on overbreadth and vagueness.

5. Monell: enforcement of an official Policy can satisfy policymaker/moving-force pleading even if enforcement is by individual members

The City attempted to defeat municipal liability by emphasizing that binding council action requires a majority vote, while Merriott alleged interruptions by individual councilmembers. The Fifth Circuit rejected that move at the pleading stage: where the challenged act is enforcement of an official, council-promulgated Policy, the plaintiff plausibly alleges municipal policy caused the violation. The court also underscored that threats of removal and interruptions can constitute actionable restraints because they stop speech midstream.

6. Retaliation: self-censorship can be a concrete injury

Merriott alleged he now self-censors for fear of removal/retaliation. The court held that, taken as true, this is a plausible “ordinary firmness” injury under Keenan v. Tejeda and McLin v. Ard.

7. OML: quorum deliberations and informal polling after meetings can trigger “meeting” status; penalties require “knowingly and willfully”

On the Louisiana claim, the court held the complaint plausibly alleged an OML-covered “meeting” because a quorum gathered to discuss changing public-comment rules and engaged in what plausibly amounted to informal polling. But it dismissed civil penalties because the statute requires pleading knowing and willful participation, which Merriott did not allege.

C. Impact

1. Drafting public-comment rules in the Fifth Circuit

The opinion puts cities and other local bodies in the Fifth Circuit on notice that broadly worded “civility” and “no personal remarks” clauses—especially when undefined—invite facial invalidation for overbreadth and vagueness, and may also constitute viewpoint discrimination when they suppress disparaging criticism. Entities must move away from subjective labels (“impertinent,” “personal,” “slanderous”) toward objective, conduct-focused standards tied to maintaining order (e.g., time limits, speaking out of turn, refusing to yield the floor, actual disruptions).

2. Increased exposure to facial challenges (and early-stage reversal of dismissals)

The case is also notable procedurally: the Fifth Circuit was willing to reverse a dismissal at the pleading stage based on the Policy’s text and realistic applications, underscoring that municipalities may not rely on “we’ll apply it reasonably” arguments where the text itself authorizes sweeping censorship.

3. Monell litigation consequences

The decision strengthens plaintiffs’ ability to plead Monell where an official speech policy is enforced through interruptions or threats, even if enforcement decisions are made by an individual presiding official rather than a post-hoc council vote. The key is the challenged enforcement being traceable to an official policy.

4. Louisiana Open Meetings enforcement

For Louisiana public bodies, the decision signals that post-meeting quorum gatherings to discuss future policy changes—and especially “counting votes” or otherwise surveying members’ positions—can be plausibly alleged as OML-covered meetings. At the same time, plaintiffs seeking civil penalties must plead (and later prove) “knowing and willful” participation.

IV. Complex Concepts Simplified

  • Limited public forum: A government-controlled space opened for certain kinds of public speech (here, city council comment). The government may impose rules, but they must be reasonable and viewpoint neutral.
  • Overbreadth (facial): A rule can be struck down if it prohibits a substantial amount of protected speech relative to its legitimate reach, because it chills others from speaking.
  • Void for vagueness: A rule is unconstitutional if ordinary people cannot tell what it forbids or if it gives officials too much discretion, enabling selective enforcement.
  • Viewpoint discrimination: Government cannot suppress speech because it disagrees with the speaker’s perspective—e.g., allowing praise but silencing harsh criticism.
  • Monell liability: A city can be sued under § 1983 when an official policy (not just a rogue employee) causes the constitutional violation.
  • Retaliation / chilling: Even if a speaker continues speaking sometimes, fear-driven self-censorship can be an actionable injury if it would deter an ordinary person.
  • OML “meeting” and “polling”: Under Louisiana law, when a quorum convenes to deliberate/receive information on public business—or informally surveys members’ intended votes—that can trigger open-meeting requirements.

V. Conclusion

Merriott v. City of Bossier City materially reinforces First Amendment limits on “decorum” rules in governmental meeting forums. The Fifth Circuit held that undefined bans on “personal, impertinent or slanderous remarks” and “becom[ing] boisterous” plausibly fail the Constitution on overbreadth and vagueness grounds, and that “personal/impertinent/slanderous” bans plausibly amount to viewpoint (and thus impermissible content) discrimination. The court also clarified that enforcement of an official speech policy can support Monell claims at the pleading stage and recognized self-censorship as a cognizable retaliation injury. Finally, it breathed life into OML enforcement where quorums privately deliberate or poll, while insisting plaintiffs plead the statute’s “knowing and willful” requirement to recover civil penalties.