Court Opinions: 10th Circuit Court of Appeals Opinion for Dec. 27

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Pollak v. Wilson, et al.

On Feb. 7, the Sheridan County School Board held a meeting, which included a period for public comment. During the comment period, the board prohibited discussion of “whether the district [was] following the state constitution, personnel matters, criticism, and ridicule.

The board chair, Susan Wilson, announced “[w]e do not talk about personnel unless it’s favorable things. We always like to hear those. That’s a personnel matter, which we are not allowed to speak about in public.” 

Harry Pollak signed up to speak at the meeting. When it was his turn, he “mentioned Superintendent [Scott] Stults’ name with respect to Stults’ comments at the previous meeting.” According to the 10th Circuit Court of Appeals opinion, Wilson “seized on the mention of Stults’ name as making a comment on a personnel matter[,] proceeded to shut down [Pollak]’s comment,” and had Pollak removed from the premises.

Pollak filed an action alleging a violation of his free speech rights under the First Amendment. The complaint asserted the meeting was a limited public forum and the board restricted speech based on subject and viewpoint. The complaint also alleged, in restricting Pollak’s speech, the board “acted in accordance with existing policies . . . [or] made new policy as applied to” him. 

Pollak sought an injunction to prevent the board from restricting his free speech rights and a declaration the school board’s actions were unlawful. He also sought damages and fees.

The district court denied that request, concluding Pollak hadn’t shown a likelihood of success on the merits of his First Amendment claim. 

In this interlocutory appeal, Pollak asserted to the 10th Circuit the district court abused its discretion in denying his request for a preliminary injunction.

The appeals court concluded the board showed the policy’s personnel-matter restriction is viewpoint neutral and reasonable and Pollak lacks standing to challenge the abusive-language restriction. A 10th Circuit panel out of Cheyenne, Wyoming, determined the district court didn’t abuse its discretion by denying Pollak’s request for a preliminary injunction because he hasn’t shown a substantial likelihood of success on the merits. The 10th Circuit affirmed.

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