Opinion
No. 1:18-CV-00067-JRG-SKL
01-06-2020
AMALGAMATED TRANSIT UNION and Amalgamated Transit Union Local 1212, Plaintiffs, v. CHATTANOOGA AREA REGIONAL TRANSPORTATION AUTHORITY , Defendant.
Michael P. Persoon, Thomas H. Geoghegan, Michael A. Schorsch, Despres, Schwartz & Geoghegan, Ltd., Chicago, IL, Jimmy F. Rodgers, Jr., Summers, Rufolo & Rodgers, P.C., Chattanooga, TN, for Plaintiffs. Philip Aaron Wells, Ronald D. Wells, Stacy L. Archer, Robinson, Smith & Wells, Chattanooga, TN, for Defendant.
Michael P. Persoon, Thomas H. Geoghegan, Michael A. Schorsch, Despres, Schwartz & Geoghegan, Ltd., Chicago, IL, Jimmy F. Rodgers, Jr., Summers, Rufolo & Rodgers, P.C., Chattanooga, TN, for Plaintiffs.
Philip Aaron Wells, Ronald D. Wells, Stacy L. Archer, Robinson, Smith & Wells, Chattanooga, TN, for Defendant.
MEMORANDUM OPINION
J. RONNIE GREER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. 43], Defendant's Memorandum of Law in Support of Motion for Summary Judgment [Doc. 44], Plaintiffs' Response [Doc. 55], Plaintiffs' Motion for Summary Judgment [Doc. 46], Plaintiffs' Memorandum of Law in Support of Their Motion for Summary Judgment [Doc. 46-1], Defendant's Response [Doc. 53], Plaintiffs' Reply [Doc. 58], Defendant's Motion to Dismiss [Doc. 63], and Plaintiffs' Response [Doc. 64]. For the reasons herein, the Court will grant Defendant's motion to dismiss in part and deny it in part, deny Defendant's motion for summary judgment, and grant Plaintiffs' motion for summary judgment.
I. BACKGROUND
Defendant Chattanooga Area Regional Transportation Authority ("CARTA") is a public transit authority that the City of Chattanooga created through its authority under Tennessee statute. [Def.'s Resp. Undisputed Facts, Doc. 54, at 1]. Under Chattanooga code, CARTA has legal authority to operate buses in Chattanooga, [Chattanooga, Tenn., Code § 23-1], and it has a legal obligation to hold monthly board meetings, [id. § 23-3(b) ]. CARTA's board is responsible for exercising "supervision" over CARTA's "operation." [Id. § 23-3(d) ]. In August 2015, CARTA enacted Resolution 566, whose full title reads: "A Resolution to Establish a Policy and Procedure for Oral Presentation of Public Comments at Board Meetings of the Chattanooga Area Regional Transportation Authority." [Res. 566, Doc. 43-2, at 1].
Throughout this opinion, the Court uses "CARTA" and "CARTA's board" interchangeably.
In Resolution 566, CARTA acknowledges that its meetings are "open to attendance by members of the general public" and that "the general public from time to time request the opportunity to address the CARTA Board pertaining to items which may or may not be part of the scheduled business agenda for the Board meeting." [Id. ]. Also, CARTA adopted various policies and procedures for oral presentations in Resolution 566, allowing for, on one hand, a public-comment session at its meetings but striving to, on the other hand, prevent the public from becoming disruptive of CARTA's business agenda. Those policies and procedures include requirements that speakers must provide CARTA with three days' advance notice of the subject matter of their presentations, and the subject matter must, in the view of CARTA's chairman, be "reasonably connected" to CARTA's "business, operations, and policies." [Id. at 2]. Also, Resolution 566 prohibits speakers from "denigrat[ing] any other entity or individual." [Id. ].
Resolution 566 also includes requirements that speakers must limit their presentations to the subject matter that they identify in the advance notice; speakers may not speak for more than three minutes; and speakers may not use vulgar or obscene language. [Res. 566 at 2].
In December 2017, Plaintiff Amalgamated Transit Union Local 1212 ("ATU Local 1212")—the local affiliate of Plaintiff Amalgamated Transit Union ("ATU"), an international labor organization that represents transit workers, [Def.'s Resp. Undisputed Facts at 2]—issued a press release, announcing that it would hold a rally outside Chattanooga's city council building, [Press Release, Doc. 47-7, at 1]. In the press release, Kathryn Smith—who is ATU Local 1212's president and a bus driver in CARTA's employment, [Def.'s Resp. Undisputed Facts at 2]—said that the rally's purpose was to protest CARTA's treatment of its bus drivers, who were union members of ATU Local 1212; discrimination by management; and safety issues:
The Union, representing more [than] 100 CARTA bus, shuttle, paratransit and incline operators and maintenance workers, says a bus driver shortage is threatening public safety and service by forcing overtime work. Furthermore, management is jeopardizing safety by putting unsafe buses on the streets and scheduling bus routes that do not allow sufficient time for bathroom breaks for drivers.
"Safety is job number one and overworking bus operators because of a shortage of qualified drivers for countless hours without a break defies common sense," says Local 1212 President Kathryn Smith. "This is a fatal accident waiting to happen. It's time to stop threatening drivers who don't want to work overtime and instead focus on ensuring safety and service for riders."
Furthermore, the Local charges discrimination by CARTA management in disciplining African-American and female workers differently than other workers.
"We will not be silent and let the CARTA get away with this," Smith continued. "It's time for CARTA Executive Director Lisa Maragnano and her lackeys to put riders and safety first."
[Press Release at 1].
After ATU Local 1212 held its rally—which received coverage from the local media, [Def.'s Resp. Undisputed Facts at 6]—Ms. Smith sent a letter to CARTA, requesting permission to speak during the public-comment session of CARTA's meeting for the month of December, [Smith Letter, Doc. 43-4, at 1]. She identified three topics that she wished to address at the meeting: (1) working conditions, (2) safety and service, and (3) discrimination. [Id. ]. In response, CARTA's board chairman, Steve Jett, rejected her request, writing, in part:
Ms. Smith, as a policy-making body, the CARTA Board does not discuss specific personnel issues at Board meetings,
so your request will not be on the December 21 agenda.
Please note that I am aware of your statements to the news media and have discussed at length with CARTA management about your perceived concerns and management's efforts to address them. I believe that management is doing, and will continue to do, all that can reasonably be done to address your concerns, given CARTA's limitations in the areas of physical facilities and personnel resources.
[Jett E-mail, Doc. 43-5, at 1]. In lieu of speaking at the meeting, Ms. Smith ultimately agreed to participate in a private meeting with CARTA's management. [Def.'s Resp. Undisputed Facts at 7].
In February 2018, Ms. Smith again requested permission to speak at CARTA's monthly meeting and identified "workplace business etc." as her topic. [Smith E-mail, Doc. 43-8, at 1]. Chairman Jett, however, again denied her request, writing, in part:
As you know, CARTA several years ago adopted a policy which allows a member of the general public to briefly address the CARTA board on matters of relevance or importance to CARTA.
However, ATU Local 1212 is not a part of the "general public." Rather it is the labor union which represents a portion of CARTA drivers and employees....
Our collective bargaining agreement establishes the appropriate procedures for the union to express its grievances[ ] [and] for CARTA's management to address and deal with those grievances....
Because CARTA and the union long ago agreed that the collective bargaining agreement would serve as the "terms of engagement" between the two organizations, we are not approving your request to be allowed to address the board.
....
[W]e will not ... open up the board meetings for presentation of open-ended grievances that should be addressed under our collective bargaining agreement.
[Second Jett E-mail, Doc. 43-9, at 1–2].
In March, Ms. Smith again requested permission to speak at CARTA's monthly meeting, [Second Smith E-mail, Doc. 43-10, at 1], but Mr. Jett again denied her request:
Kathy, as I have explained previously, the Board is not the place to discuss and negotiate personnel issues of the sort you have identified. Issues o[f] that sort are to be resolved in accordance with the agreed terms of our mutual Collective Bargaining Agreement. Attached is a copy of my email last month giving a more detailed explanation.
[Third Jett E-mail, Doc. 43-10, at 1]. Chairman Jett proposed that Ms. Smith once again meet privately with CARTA's management. [Id. ]. In reply, Ms. Smith reasserted her desire to speak at the upcoming monthly meeting: "As we have stated before Local 1212 is asking to speak about issues that affect the general public in terms of public saftey [sic], etc. Please give us time to speak. Thank you." [Smith Reply Letter, Doc. 43-11, at 1]. Ms. Smith, however, did not receive permission to speak, and on the day following the meeting, Mr. Jett sent an e-mail to Ms. Smith, re-proposing a private meeting with CARTA's management. [Fourth Jett E-mail, Doc. 47-10, at 3]. On March 23, ATU and ATU Local 1212's legal counsel threatened CARTA with federal litigation unless it permitted ATU and ATU Local 1212's members to speak at its meetings and rescinded or amended Resolution 566. [Counsel's Letter, Doc. 63-1, at 1–3].
On April 9, Ms. Smith, for the fourth time, requested permission to speak at CARTA's monthly meeting, and on April 13, Chairman Jett responded by granting her request. [Third Smith E-mail, Doc. 43-24, at 1; Fifth Jett E-mail, Doc. 43-24, at 1]. Specifically, Chairman Jett wrote in an e-mail: "Kathy, you are free to speak at the Board meeting as you requested. The topic identified in your March 15 letter to me ... is issues that affect the general public in terms of public safety. I assume that remains your topic." [Fifth Jett E-mail at 1]. In that same e-mail, however, he recited a few of Resolution 566's "ground rules," including CARTA's prerogative to prohibit speakers from raising "disagreements" about "personnel decisions." [Id. ]. Four days later, ATU and ATU Local 1212 filed this suit under 42 U.S.C. § 1983, alleging that (1) CARTA is infringing their First Amendment right to free speech by excluding them from its monthly meetings and that (2) Resolution 566 is facially unconstitutional under the First Amendment. [Compl., Doc. 1, at 1–7]. As relief, ATU and ATU Local 1212 request a permanent injunction prohibiting CARTA from following or enforcing Resolution 566. [Id. ¶ 39].
Plaintiffs initially brought suit against Mr. Jett as well, but since then, the parties have jointly stipulated to his dismissal from this action. [Joint Stipulation, Doc. 31, at 1].
Despite bringing suit against CARTA, Ms. Smith appeared at CARTA's meeting later in the month of April and spoke on the topic of public safety. [April Meeting Mins., Doc. 43-13, at 6–7]. In fact, she appeared and spoke at four of CARTA's next five meetings. [Pls.' Resp. Undisputed Facts, Doc. 56, at 3]. According to CARTA, it approved every one of Ms. Smith's requests to speak since April 2018. [Def.'s Mot. Dismiss at 7].
In August 2018, however, CARTA passed Resolution 581, which "replace[d]" Resolution 566. [Res. 581, Doc. 43-3, at 2, 6]. Like Resolution 566, Resolution 581 states that CARTA's monthly meetings are "open to attendance by members of the general public," who "from time to time request the opportunity to address the CARTA Board pertaining to items which may or may not be part of the scheduled business agenda for the Board meeting." [Id. at 1]. Resolution 581, however, contains the same requirement that subject matter must be "reasonably connected to the business, operations, and policies of CARTA," though the determination of whether a party receives the right to speak appears now to come jointly from the chairman and vice-chairman, rather than from the chairman alone. [Id. at 2–3]. Also, Resolution 581 contains the following provision, which is absent from Resolution 566:
Subject matters and topics involving personal matters, personal concerns, and/or disagreements regarding CARTA personnel decisions, internal office politics, and operational decisions properly addressed by CARTA management will not be permitted unless they are of public concern and outweigh CARTA's interest as an employer, in promoting the efficiency of its public services.
[Id. at 3]. Lastly, Resolution 581—unlike its predecessor, Resolution 566—does not contain language requiring speakers to refrain from "denigrat[ing] any other entity or individual." [Res. 566 at 2].
In light of the fact that Resolution 566 is now defunct and that Ms. Smith, since this litigation's inception, has had the opportunity to speak at CARTA's meetings, CARTA contends that this case is now moot because a real, live controversy no longer exists—and that it therefore requires dismissal. [Def.'s Mot. Dismiss at 10–15]. The parties, in addition to their arguments on mootness, have filed cross motions for summary judgment on the merits of the claims. The Court has carefully reviewed and considered the parties' motions and is now prepared to rule on them. II. LEGAL STANDARD
Summary judgment is proper when the moving party shows, or "point[s] out to the district court," Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), that the record—the admissions, affidavits, answers to interrogatories, declarations, depositions, or other materials—is without a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a), (c). The moving party has the initial burden of identifying the basis for summary judgment and the portions of the record that lack genuine issues of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548 . The moving party discharges that burden by showing "an absence of evidence to support the nonmoving party's" claim or defense, id. at 325, 106 S.Ct. 2548, at which point the nonmoving party, to survive summary judgment, must identify facts in the record that create a genuine issue of material fact, id. at 324, 106 S.Ct. 2548 .
Not just any factual dispute will defeat a motion for summary judgment—the requirement is "that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it may affect the outcome of the case under the applicable substantive law, id. , and an issue is "genuine" if the evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Id. In short, the inquiry is whether the record contains evidence that "presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505 . When ruling on a motion for summary judgment, a court must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505 . A court may also resolve pure questions of law on a motion for summary judgment. See Hill v. Homeward Residential, Inc. , 799 F.3d 544, 550 (6th Cir. 2015).
III. ANALYSIS
The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Within this language, our Founding Fathers have preserved an array of constitutional rights, which have a complex history in federal jurisprudence and which the federal courts, due to this complexity, have labored to define through an untold number of cases. The guarantee of free speech—the constitutional right at issue in this case—forms only a single fold in the First Amendment's fabric, yet it covers "a wide assortment of governmental restraints upon expression." Thomas v. Chi. Park Dist. , 534 U.S. 316, 320, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002).
A. Mootness
The Court begins by addressing CARTA's argument under the doctrine of mootness because it is a threshold issue that implicates the Court's jurisdiction. See WJW-TV, Inc. v. City of Cleveland , 878 F.2d 906, 909 (6th Cir. 1989) ("[M]ootness is a threshold jurisdictional issue." (citation omitted)); see also Cleveland Branch, NAACP v. City of Parma , 263 F.3d 513, 530 (6th Cir. 2001) (stating that "[a] federal court has no authority to render a decision upon moot questions" (citing Church of Scientology v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) )). Article III of the United States Constitution gives federal courts authority to adjudicate actual "Cases" or "Controversies." U.S. Const. art. III, § 2; see Ky. Right to Life, Inc. v. Terry , 108 F.3d 637, 644 (6th Cir. 1997). The mootness doctrine originates from this language in Article III, which comprises the venerable case-or-controversy requirement. Burke v. Barnes , 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). In plain terms, mootness means that if an actual, ongoing controversy ceases to exist between the parties at any point in the litigation, the case cannot continue. Arizonans for Official English v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; Pettrey v. Enter. Title Agency, Inc. , 584 F.3d 701, 703 (6th Cir. 2009) ; Carras v. Williams , 807 F.2d 1286, 1289 (6th Cir. 1986).
In determining whether a case has become moot, a court will examine any "intervening circumstances" that have arisen during the case's pendency, WJW-TV , 878 F.2d at 909 (quotation omitted), and decide whether they "render the court unable to grant the requested relief," Carras , 807 F.2d at 1289 (citing S. Pac. Terminal Co. v. Interstate Commerce Comm'n , 219 U.S. 498, 514, 31 S.Ct. 279, 55 L.Ed. 310 (1911) ); see Envtl. Def. Fund, Inc. v. Gorsuch , 713 F.2d 802, 820 (D.C. Cir. 1983) (stating that "mootness issues arise most often when circumstances change during the course of the litigation so that granting the requested relief will not serve any purpose"). In any given case, intervening circumstances may take one of three forms: (1) the plaintiff abandons or settles the case, (2) the defendant voluntarily ceases the alleged illegal conduct, or (3) events beyond either party's control cause relief to become impossible or unnecessary. Envtl. Def. Fund , 713 F.2d at 820.
The second intervening circumstance—a defendant's voluntary cessation of the alleged illegal conduct—does not, as a general rule, automatically moot a case. Los Angeles County v. Davis , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). Instead, courts must determine (1) whether the defendant's cessation of the alleged illegal conduct has completely and irrevocably eliminated the effects of that conduct and (2) whether the record supports a reasonable expectation that the alleged illegal conduct will not happen again. Id. Some federal courts have referred to this two-pronged test as the " Davis test," Doe v. Harris , 696 F.2d 109, 111 (D.C. Cir. 1982) ; Finberg v. Sullivan , 658 F.2d 93, 98 (3d Cir. 1980), though others have more recently referred to it as the "voluntary cessation test," Already, LLC v. Nike, Inc. , 568 U.S. 85, 93, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013). When a defendant "claims that its voluntary cessation of the challenged activity moots a case," as is the case here, "it bears the burden of proving mootness." Sherwood v. Tenn. Valley Auth. , 842 F.3d 400, 405 (6th Cir. 2016) (citation omitted).
To discharge this burden, a defendant who is a private entity must establish that "it is absolutely clear that the allegedly wrongful conduct could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). On the other hand, a governmental entity—consisting of public servants instead of self-interested private parties—has a less laborious undertaking in pursuit of mootness. Speech First, Inc. v. Schlissel , 939 F.3d 756, 767 (6th Cir. 2019). Whether legislative or non-legislative, a governmental entity that voluntary ceases allegedly illegal conduct is entitled to a good-faith presumption that the conduct is "unlikely to recur," id. at 767–68, so long as it "appears genuine," Bench Billboard Co. v. City of Cincinnati , 675 F.3d 974, 981 (6th Cir. 2012) (quotation omitted); see Speech First , 939 F.3d at 768 ("[G]overnment action receives this solicitude because courts assume ‘that [the government] acts in good faith’ " (quotation omitted)); Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 325 (5th Cir. 2009) ("[G]overnment actors in the sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties.").
As a governmental entity, CARTA maintains that its voluntary cessation of the alleged illegal conduct—that is, its accommodation of every one of Ms. Smith's requests to speak at its meetings since April 2018 and its repeal of Resolution 566—creates a presumption that it will not re-engage in the alleged illegal conduct. [Def.'s Mot. Dismiss at 12]. ATU and ATU Local 1212, on the other hand, assert that CARTA's repeal of Resolution 566 "does nothing to moot the case." [Pls.' Mem. at 16]. Specifically, they note that Resolution 566 "provided simply that public comment should be ‘reasonably connected to [CARTA's] business, operations, and policies,’ " whereas Resolution 581 now "more strictly regulates" speech by "totally forbid[ding] the public from discussing particular ‘subject matters and topics’ related to CARTA's operations and policies." [ Id. at 8].
Plaintiffs do not dispute that CARTA is a governmental entity. [Pls.' Resp. Undisputed Facts at 1]; see [Pls.' Mem. at 1 (describing CARTA as "a unit of local government") ].
Although ATU and ATU Local 1212 concede that a government entity's cessation of its alleged illegal conduct is entitled to "solicitude," they contend that "this solicitude is limited" and that CARTA "must still make it ‘absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ " [ Id. at 15 (quoting Friends of the Earth , 528 U.S. at 190, 120 S.Ct. 693 ) ]. In this vein, they maintain that CARTA's actions since this case's inception—its enactment of Resolution 581 and its filing of its motion for summary judgment, in which it now moves the Court to "bless its resolutions" and "hold that it has the right to require ATU members, unlike other members of the public[,] to address it in a different forum," [Pls.' Resp. Mot. Dismiss at 3]—illustrate that CARTA is angling for the right to persist in the alleged illegal behavior, [ id. at 2–3]. According to ATU and ATU Local 1212, CARTA has not "clearly and unequivocally disavow[ed]" its previous conduct, and therefore its efforts to distance itself from that conduct are a disingenuous, "opportunistic" attempt to skirt this litigation. [ Id. at 4].
ATU and ATU Local 1212 are wrong in their conviction that even a governmental entity like CARTA, as the party raising mootness, has the onus to demonstrate with absolute clarity that it will not repeat the alleged illegal acts. See Speech First , 939 F.3d at 767 ("Although the bar is high for when voluntary cessation by a private party will moot a claim, the burden in showing mootness is lower when it is the government that has voluntarily ceased its conduct." (emphasis added)); Bench Billboard , 675 F.3d at 981–82 (noting that Friends of the Earth "is the appropriate standard for cases between private parties, but this is not the view we have taken toward acts of voluntary cessation by government officials" (quoting Fed'n of Advert. Indus. Representatives, Inc. v. City of Chicago , 326 F.3d 924, 929 (7th Cir. 2003) )). ATU and ATU Local 1212 are also incorrect in their belief that CARTA, to show mootness, must disavow its alleged illegal acts. See Bench Billboard , 675 F.3d at 982 (holding that the case was moot even though "the City ha[d] never admitted to any unconstitutional conduct"); Irwin v. Tenn. Valley Auth. , No. 3:12-cv-35, 2013 WL 3968553, at *3 (E.D. Tenn. July 31, 2013) ("[A] defendant need not to admit that the challenged conduct is unconstitutional before the court will consider the conduct to be genuine." citations omitted)).
ATU and ATU Local 1212, however, are correct in their assertion that the "solicitude" that governmental entities often receive on matters of mootness is not absolute. See Speech First , 939 F.3d at 768 ("While all governmental action receives some solicitude, not all action enjoys the same degree of solicitude."). A determination of how much solicitude that a governmental entity is entitled to varies with the facts of each case and "takes into account the totality of the circumstances surrounding the voluntary cessation." Id. In addressing CARTA's argument of mootness, the Court will therefore consider the specific facts relevant to CARTA's cessation of its alleged wrongful conduct, not weighing these facts individually but in their totality.
1. Count One: Deprivation of Rights under the First Amendment
Because CARTA replaced Resolution 566—the object of ATU and ATU Local 1212's constitutional challenge—with Resolution 581, the Court's initial task is to determine whether Resolution 581 is " ‘sufficiently altered so as to present a substantially different controversy," Hill v. Snyder , 878 F.3d 193, 204 (6th Cir. 2017) (quotation omitted), or whether it differs from Resolution 566 "only in some insignificant respect," Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). In this vein, CARTA attempts to discharge its burden by highlighting various provisions of Resolution 581, arguing that they not only substantially differ from Resolution 566's provisions but also "confirm[ ] CARTA's decisions to allow Union members to talk at Board meetings and its commitment to do so in the future." [Def.'s Mot. Dismiss at 15]. In considering this argument, the Court will examine Resolution 581's provisions in relation to the alleged illegal conduct set forth in the complaint. See Ne. Fla. Chapter of Associated Gen. Contractors , 508 U.S. at 662, 113 S.Ct. 2297 (addressing the issue of mootness by examining "[t]he gravamen" of the alleged constitutional misconduct in the "petitioner's complaint" in relation to "[t]he new ordinance"); Hill , 878 F.3d at 204 (analyzing the issue of mootness by examining a new statute in relation to the type of alleged illegal conduct that "Count I challenges" and the "gravamen of Count I" as a whole). From there, the Court will review other facts that contribute to an analysis of the totality of the circumstances.
i. The Replacement of Resolution 566 with Resolution 581
The repeal or amendment of a law facing a constitutional challenge "ordinarily moots a case midstream," Hill , 878 F.3d at 204, because the law "must be analyzed by the ... court in its present form," Ky. Right to Life v. Terry , 108 F.3d at 644. But as a fact-specific analysis under the totality of the circumstances would suggest, not every case automatically becomes moot by an alteration in the law at issue. Cam I, Inc v. Louisville/Jefferson Cty. Metro. Gov't , 460 F.3d 717, 720 (6th Cir. 2006). "[I]f that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect." Ne. Fla. Chapter of Associated Gen. Contractors , 508 U.S. at 662, 113 S.Ct. 2297 . In Count One, the gravamen of ATU and ATU Local 1212's claim—the deprivation of their First Amendment right to free speech—is that CARTA unlawfully stifled their speech in a public forum by prohibiting their members from speaking about the "business, operations and policies of CARTA" because they were union members and might criticize CARTA. [Compl. ¶¶ 33–34]. In other words, ATU and ATU Local 1212 maintain that CARTA "unlawfully sought to censor and restrict [their members] from criticizing defendants and thereby imposed a content based restriction on speech in violation of the First Amendment." [ Id. ¶ 34]. Resolution 566, they plead, paved the way for this violation because it gave Chairman Jett "unbridled discretion" to reject a party's request to speak at meetings. [ Id. ¶ 18].
CARTA endeavors to counter ATU and ATU Local 1212's allegations by emphasizing that Resolution 581 vests decision-making authority with "the Chairman and the Vice-Chairman, not just the Chairman alone." [Def.'s Mot. Dismiss at 15]. On a more tangential note, CARTA mentions that Resolution 581 also increases the amount of time that speakers have for their presentations by two minutes. [ Id. ]. And lastly, CARTA claims that "Resolution 581 prohibits interference or discrimination on the basis of content," though it does not explain how this is so. [ Id. ]. According to CARTA, "Resolution 581 is a clear step by the CARTA Board to add more careful review to requests to speak at Board meetings." [ Id. ].
But the meticulousness of CARTA's review process is not at issue in the complaint; the issue is whether CARTA was using its review process to prohibit ATU and ATU Local 1212's members from voicing disagreement during its public meetings, resulting in a content-based restriction on speech. The upshot of Resolution 581's dual review process—which now involves both CARTA's chair and vice chair—is, frankly, lost on the Court in light of the fact that Resolution 581, unlike Resolution 566, now empowers CARTA with the authority to refuse prospective speakers whose intent is to voice "disagreements." [Res. 581 at 3]. CARTA has now expressly reserved the right to eschew speech that, in its judgment, is critical of its decision-making—the precise type of conduct that ATU and ATU Local 1212 has condemned as illegal in its complaint. See [Compl. ¶ 34 (alleging that CARTA has "unlawfully sought to censor and restrict plaintiffs from criticizing defendants and thereby imposed a content based restriction on speech in violation of the First Amendment") ]. CARTA therefore cannot realistically say that Resolution 581, as Resolution 566's successor, has been "sufficiently altered so as to present a substantially different controversy" from the one that ATU and ATU Local 1212 identify in their first claim. Hill , 878 F.3d at 204 (quotation omitted).
ii. The Timing of CARTA's Voluntary Cessation
The timing of CARTA's cessation of its alleged illegal conduct is another consideration that the Court reviews under the totality of the circumstances, because it weighs on whether a party's disengagement from alleged illegal conduct is genuine. Speech First , 939 F.3d at 769–70 ; Northland Family Planning Clinic, Inc. v. Cox , 487 F.3d 323, 342–43 (6th Cir. 2007). After rejecting Ms. Smith's previous requests—three, in all—CARTA approved Ms. Smith's fourth request, reversing course fewer than three weeks after receiving her attorney's threat of federal litigation, and CARTA rescinded Resolution 566 only after this litigation began. The proximity between CARTA's acts of cessation and the advent of this litigation increases CARTA's burden in illustrating mootness, even as a governmental entity. See Speech First , 939 F.3d at 769 ("The timing of the [public] University's change [in its policy] also raises suspicions that its cessation is not genuine. The University removed the definitions after the complaint was filed. If anything, this increases the University's burden to prove that its change is genuine." (citations omitted)); Northland Family Planning Clinic , 487 F.3d at 342–43 ("In this case, that burden is increased by the fact that the voluntary cessation only appears to have occurred in response to the present litigation, which shows a greater likelihood that it could be resumed." (citation omitted)).
The obvious inference from the timing of CARTA's cessation is that it changed its ways in response to the prospect of litigation and to the initiation of litigation, particularly in light of the evidence showing that it had consistently rejected Ms. Smith's requests beforehand. As the party with the burden of establishing mootness, CARTA musters no viable argument or evidence to dissuade the Court from drawing this inference. See Speech First , 939 F.3d at 769–70 (citing a lack of evidence and ineffective argumentation as grounds for rejecting the university's reason for waiting to enact a new policy until after the litigation had begun). In fact, CARTA appears to concede that it granted Ms. Smith permission to speak at its meetings only because of the specter of litigation: "When it became clear to Mr. Jett that the union members were not going to accept the offer of additional meetings ... and that [ATU and ATU Local 1212] instead planned to pursue litigation, he granted the request for the union members to talk to the Board." [Def.'s Mot. Dismiss at 13]. The timing of CARTA's cessation is therefore conspicuous, and it adds to its burden of substantiating the genuineness of its abstention from the alleged wrongful conduct. Speech First , 939 F.3d at 769 ; Northland Family Planning Clinic , 487 F.3d at 342–43.
iii. CARTA's Ongoing Defense of Its Conduct
Although a defendant's express disavowal of alleged illegal conduct is not a prerequisite to establishing mootness, see Bench Billboard , 675 F.3d at 982 ; Irwin , 2013 WL 3968553 at *3, the Court—under the totality of the circumstances—does consider any efforts on a defendant's part, in the face of litigation, to "vigorously defend[ ] the constitutionality of its [laws]," Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 , 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) ; see Speech First , 939 F.3d at 770 ("Significantly, the University continues to defend its use of the challenged definitions. Although not dispositive, the Supreme Court has found whether the government ‘vigorously defends the constitutionality of its ... program’ important to the mootness inquiry." (quoting Parents Involved in Cmty. Schs. , 551 U.S. at 719, 127 S.Ct. 2738 )).
In response to ATU and ATU Local 1212's allegations, CARTA has indeed defended the constitutionality of its conduct, and arguably, has even vigorously defended it. CARTA has, for instance, filed a motion for summary judgment, asserting that "both" Resolution 566 and Resolution 581 "are constitutionally valid" and that Chairman Jett's rejection of Ms. Smith's requests to speak at prior meetings was also "constitutionally valid based upon Mr. Jett's authority to limit topics." [Def.'s Mem. at 12]. CARTA's motion is substantial, and in that motion, CARTA pushes for its cause in exhaustive detail; in fact, it had to move for leave to exceed the page-limit under the Court's local rules. [Mot. Exceed Page Limit, Doc. 49]. And even now, months after the filing of its motion, it continues to defend the constitutionality of Chairman Jett's refusal to permit Ms. Smith to speak at prior meetings. For instance, it maintains that Ms. Smith would not have communicated her concerns in the "correct manner" at those meetings and that "the Board meeting[s] would not be the place to have an individual employee raise the issue[s]" that she intended to raise. [Def.'s Mot. Dismiss at 12]. The record therefore establishes that CARTA has remained insistent, even to this point, that its conduct has not been unlawful, and its insistence bodes against a finding of mootness. See Knox v. Serv. Emps. Int'l Union, Local 1000 , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ("[H]ere, since the union continues to defend the legality of the Political Fight-Back fee, it is not clear why the union would necessarily refrain from collecting similar fees in the future.").
iv. A Recapitulation of the Totality of the Circumstances
In sum, the totality of the circumstances—CARTA's reservation, under Resolution 581, of its right to prohibit speakers from voicing disagreements, the timing of its cessation, and its protracted defense against the allegations in Count One—does not create a genuine appearance that CARTA's alleged conduct is unlikely to resurface if the Court dismisses Count One, despite the good-faith presumption that CARTA is entitled to. CARTA therefore fails to discharge its burden as the party raising mootness, and this case, as it pertains to Count One, is not moot.
2. Count Two: Facial Challenge to Resolution 566
Still considering the question of mootness, the Court begins its analysis of Count Two as it did with its analysis of Count One, by reviewing the gravamen of the alleged illegal conduct in the complaint. Ne. Fla. Chapter of Associated Gen. Contractors , 508 U.S. at 662, 113 S.Ct. 2297 ; Hill , 878 F.3d at 204. In Count Two, ATU and ATU Local 1212 allege that Resolution 566 is facially unconstitutional because it (1) "reserves to a single official unbridled discretion to waive its procedural requirements in favor of preferred speakers and speech" and (2) "it is overbroad in that it forbids all speech that ‘denigrate[s] any other entity or individual.’ " [Compl. ¶ 37]. In response, CARTA again asserts that, under Resolution 581, "[t]he power of making the decision to grant the request [to speak] no longer rests with one person," but with both the chairman and the vice chairman. [Def.'s Mot. Dismiss at 15]. Also, CARTA has excised Resolution 566's language "denigrate[s] any other entity or individual" from Resolution 581. [Res. 566 at 2].
As a general principle, when a plaintiff challenges portions of a law as unconstitutional, the defendant's removal of the specific portions subject to challenge will render the challenge moot. See Dubuc v. Parker , 168 F. App'x 683, 686, 688 (6th Cir. 2006) (affirming the district court's decision that the case was moot "because the Rules had been amended to remove the challenged provisions"); Brandywine, Inc. v. City of Richmond , 359 F.3d 830, 836 (6th Cir. 2004) ("We can neither declare unconstitutional nor enjoin the enforcement of a provision that is no longer in effect."); Ky. Right to Life , 108 F.3d at 644 (recognizing that "overbreadth challenges to statutes become moot when the challenged language is effectively nullified by subsequent statutory amendment"); Miller v. Benson , 68 F.3d 163, 164, 165 (7th Cir. 1995) (determining that the case was moot because the state enacted a new statute "minus the word" that had been the object of the plaintiff's facial challenge). This common-law principle holds true in this case under the totality of the circumstances. Again, Resolution 581 does not contain the provisions that are subject to ATU and ATU Local 1212's facial challenge, and ATU and ATU Local 1212 have not amended their complaint to include allegations that Resolution 581 is facially unconstitutional. Also, they do not argue in their motion for summary judgment that Resolution 581 is facially unconstitutional. Instead, they maintain that "CARTA's decision to ban Local 1212 from speaking at CARTA's public board meeting[s] violates the First Amendment" and that this case is not moot because "CARTA views union speech as something outside the protection of the First Amendment." [Pls.' Mem. at 10, 16]. In addition, although CARTA has defended Chairman Jett's application of Resolution 566, it has not defended the provisions of Resolution 566 that are subject to ATU and ATU Local 1212's facial challenge: (1) the provision granting unliteral authority in Mr. Jett to approve or reject prospective speakers and (2) the provision barring "denigrat[ion] [of] any other entity or individual." [Res. 566 at 2]. Instead, CARTA has repealed these provisions and has not resurrected them in Resolution 581.
Under these circumstances—CARTA's rescission of these provisions, in lieu of a particularized defense of them; ATU and ATU Local 1212's failure to plead or argue that any language in Resolution 581 is facially unconstitutional; and the common-law principle that a party's removal of the language subject to a facial challenge will moot the challenge—CARTA is entitled to a good-faith presumption that the "allegedly wrongful conduct by the government is unlikely to recur." Speech First , 939 F.3d at 767 (citing Friends of the Earth , 528 U.S. at 189, 120 S.Ct. 693 ). As a governmental entity, CARTA has therefore discharged its "lower" burden of establishing that its voluntary cessation is genuine as it relates to Count Two, id. , and that while an actual controversy may have existed at this case's outset, it does not exist now, Rettig v. Kent City Sch. Dist. , 788 F.2d 328, 330 (6th Cir. 1986) ("To satisfy the case or controversy requirement, an actual controversy must exist at all stages of review, and not simply on the date the action is initiated." (citing Roe v. Wade , 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) )). ATU and ATU Local 1212's facial challenge to Resolution 566 is therefore moot.
B. Violation of the First Amendment
Having determined that Count One—ATU and ATU Local 1212's claim that CARTA has deprived them of their First Amendment right to free speech—is not moot, the Court will now address that claim's merits. Again, the First Amendment's Free Speech Clause states that the government "shall make no law ... abridging the freedom of speech." The Free Speech Clause's preservation of freedom of speech is "a cornerstone of our society." Iancu v. Brunetti , ––– U.S. ––––, 139 S. Ct. 2294, 2318, 204 L.Ed.2d 714 (2019) (Sotomayor, J., concurring in part and dissenting in part). "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions," and it is "essential to the security of the Republic." New York Times Co. v. Sullivan , 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quotations omitted).
The Free Speech Clause protects written speech in addition to oral speech. Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 576, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991).
ATU and ATU Local 1212 maintain that they are mounting a "clear challenge to what is both a ‘speaker based’ and ‘content based’ restriction of speech by the government." [Pls.' Resp. Mot. Summ. J. at 1]. First, they identify the speaker-based restriction as CARTA's refusal to permit Ms. Smith—and more broadly, the union members—to speak at prior meetings because, in CARTA's view, "they are not ‘members of the general public.’ " [Pls.' Mem. at 10]. Second, they identify the content-based restriction as CARTA's refusal to grant Ms. Smith and the union members permission to speak on topics within the collective bargaining agreement: "[T]he Board meeting[s] [are] not the place to discuss and negotiate personnel issues of the sort you have identified. Issues of that sort are to be resolved in accordance with the agreed terms of our mutual Collective Bargaining Agreement." [ Id. at 10–11 (footnote omitted) (quoting Third Jett E-mail at 1) ]. They also maintain that CARTA—as part of its content-based restriction—constrained the "viewpoint of potential speech," [ Id. at 3], by prohibiting "disagreements" with its decisions and politics, [Pls.' Resp. Mot. Summ. J. at 6 (quoting Res. 581 at 3) ].
A content-based restriction is one "that target[s] speech based on its communicative content," and it is "presumptively unconstitutional." Reed v. Town of Gilbert , 576 U.S. 155, 135 S. Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) (citations omitted). A viewpoint-based restriction, which targets "speech based on ‘the specific motivating ideology or the opinion or perspective of the speaker,’ " is a subset of a content-based restriction but in a more virulent form. Id. at 2230 (quotation omitted); see Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 45–46, 103 S.Ct. 948, 74 L.Ed.2d 794 (Brennan, J., dissenting) (1983) ("Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’ "). And lastly, a speaker-based restriction favors some speakers' messages over others based on the messages' content and, like a content-based restriction, is presumptively unconstitutional. See Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (recognizing that "government regulation may not favor one speaker over another" (citation omitted)); see also Reed , 135 S. Ct. at 2230 ("Because ‘[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content, we have insisted that ‘laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference.’ " (internal quotation and quotation omitted)).
The Free Speech Clause's protection, however, is not absolute, see Chaplinsky v. New Hampshire , 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ("[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances." (footnote omitted)), and its vigor depends, partly, on the type of speech at issue. The Free Speech Clause's protection is at its zenith when the speech is private, or non-governmental, speech on matters of public concern—like public debate about politics or governmental affairs, for example. Mills v. Alabama , 384 U.S. 214, 218–19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) ; see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 758–59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (stating that "[i]t is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment's protection" (quotation omitted)); Connick v. Myers , 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("[S]peech on public issues occupies the ‘highest rung of the heirarchy of First Amendment values,’ and is entitled to special protection." (quotation and citation omitted)). A restriction of speech on matters of a non-public nature, like information about an individual's credit report, "does not implicate the same constitutional concerns as limiting speech on matters of public interest" because it does not risk censorship "on matters of public import." Snyder v. Phelps , 562 U.S. 443, 452, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (citation omitted).
So while speech of public concern is entitled to special protection under the First Amendment, speech of non-public concern is not "of equal First Amendment importance" and receives "less rigorous" protection. Id. (citation omitted). The type of speech at issue in this case is therefore of threshold significance, affecting the caliber of the First Amendment's protection. Id. ; see Harris v. Quinn , 573 U.S. 616, 673, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014) (Kagan, J., dissenting) ("First, if the expression at issue does not relate to ‘a matter of public concern,’ the employee ‘has no First Amendment cause of action." (quoting Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ); Boulton v. Swanson , 795 F.3d 526, 531 (6th Cir. 2015) ("Two questions arise in addressing a public employee's free speech claim. First, we must answer the threshold inquiry—did the employee speak as a ‘citizen on a matter of public concern.’ If so, we then balance the justifications for a speech restriction against the employee's free speech interest." (quoting Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 )).
1. Constitutionally Protected Speech
The parties vigorously dispute whether Ms. Smith's speech is of public concern and is entitled to the First Amendment's protection. In arguing that her speech is not constitutionally protected speech, CARTA relies heavily on Garcetti v. Ceballos , 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) —a case in which the Supreme Court circumscribed governmental employees' free speech—and its progeny. [Def.'s Mem. at 14–19]. ATU and ATU Local 1212, however, argue that CARTA relies on a "strained invocation of Garcetti " because it is a "reprisal case," or a case that does not deal with a content-based or speaker-based restriction but with whether the government illegally discharged an employee for exercising his free-speech rights. [Pls.' Resp. Mot. Summ. J. at 10, 12, 13].
Garcetti and its progeny did indeed arise in the context of employment disputes—demotions, suspensions, and retaliatory discharges. In Garcetti , the Supreme Court narrowed the right that governmental employees have to free speech when the speech takes place inside the employment arena. Specifically, the Supreme Court held that a former deputy district attorney, whose office discharged him after he wrote a controversial legal memo, could not challenge his termination under the First Amendment because he prepared the memo in the course of his official duties, not as a public citizen, and the memo therefore was not speech of public concern. 547 U.S. at 422–24, 126 S.Ct. 1951 . "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes[.]" Id. at 421, 126 S.Ct. 1951 .
Despite the fact that Garcetti arose in the context of an employment dispute—as cases that implicate the First Amendment often do, see, e.g. , Lane v. Franks , 573 U.S. 228, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014) ; Handy-Clay v. City of Memphis , 695 F.3d 531 (6th Cir. 2012) ; Haynes v. City of Circleville , 474 F.3d 357 (6th Cir. 2007), this Court is unaware of any court that, when contemplating whether a record contains speech of public concern in a non-reprisal case, has declined to avail itself of Garcetti 's teachings, see Fleming v. City of Oceanside , No. 10cv1090-LAB (BLM), 2010 WL 5148469, at *5 (S.D. Cal. Dec. 14, 2010) (" Garcetti was a wrongful discharge case—the plaintiff alleged he was fired for protected speech—but there is no reason to limit the principle to that context."); Brammer-Hoelter v. Twin Peaks Charter Acad. , 575 F. Supp. 2d 1219, 1225 n.4 (D. Colo. 2008) (recognizing that Garcetti "applies to freedom of speech retaliation claims specifically, but provides the means generally for determining when employee speech is subject to First Amendment protection"), rev'd on other grounds , 602 F.3d 1175 (10th Cir. 2010).
In fact, the Supreme Court itself, in Harris v. Quinn , 573 U.S. 616, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014), broached Garcetti outside the context of retaliatory discharge. In Harris , the Supreme Court considered the constitutionality, on First Amendment grounds, of a state law that required certain state healthcare workers to subsidize a labor union's collective-bargaining process—and along with it, the labor union's speech—even if they chose not to join the labor union. Id. at 624–26, 134 S.Ct. 2618 . Arguing that the law was constitutional, the respondents claimed that the speech at issue was not speech of public concern, and to support their position, they invoked cases in Garcetti 's lineage—that is, cases in which employee speech lacks protection if it is not of public concern. Id. at 652–53, 134 S.Ct. 2618 . In response, the Supreme Court recognized that Garcetti and cases in the same line apply when the government acts "in a traditional employer role," and it noted that these cases did not apply in Harris for the simple reason that the state had not acted in this role. Id. at 652–53, 134 S.Ct. 2618 (footnote omitted). It mentioned nothing of any need for a labor or employment dispute.
Under the statute at issue, the state paid the healthcare workers' salaries, but otherwise its "role [was] comparatively small." Harris , 573 U.S. at 622–23, 134 S.Ct. 2618 . The state labor relations board had in fact found "no typical employment arrangement" between the healthcare workers and the state because the state merely paid individuals to work "under the direction and control of private third parties." Id. at 622, 134 S.Ct. 2618 .
The four dissenting justices—endorsing an even broader view of Garcetti —asserted that they would have applied Garcetti 's principles, and cases of its ilk, to Harris 's facts. Id. at 672–73, 134 S.Ct. 2618 (Kagan, J., dissenting).
So even in the absence of a labor or employment dispute, this Court is not chary of viewing Garcetti as controlling in cases in which the speech at issue takes place during the performance of an employee's duties. See Lane , 573 U.S. at 240, 134 S.Ct. 2369 (stating, without qualification, that "[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties"). The Court will therefore apply Garcetti 's principles here, as CARTA encourages it to do, and the Court's task, broadly put, is to decide whether Ms. Smith was speaking "as a citizen upon matters of public concern." Garcetti , 547 U.S. at 416, 126 S.Ct. 1951 (quotation omitted). More specifically, the Court has to determine (1) whether Ms. Smith's speech—that is, her identification of the prospective topics of speech in her letters and e-mails to Chairman Jett—arose during the performance of her duties as CARTA's employee and (2) whether Ms. Smith's speech is of public concern. Id. at 417–18, 126 S.Ct. 1951 ; Handy-Clay , 695 F.3d at 540. i. The Scope of Employment
"Constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public." Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1 , 131 F.3d 564, 579 (6th Cir. 1997) (citing Connick , 461 U.S. at 146, 103 S.Ct. 1684 ).
The question of whether a party's speech occurred in the course of her employment is one of law. Mayhew v. Town of Smyrna , 856 F.3d 456, 463–64 (6th Cir. 2017). Although the parties agree that Ms. Smith was CARTA's employee, [Def.'s Resp. Undisputed Facts at 2], they disagree as to whether her speech occurred during the performance of her duties, [Def.'s Mem. at 16–17; Pls.' Resp. Mot. Summ. J. at 10–11]. According to CARTA, Ms. Smith's requests "w[ere] offered in [her] official capacities/duties as [a] CARTA employee[ ] and/or union representative[ ]." [Def.'s Mem. at 16]. In CARTA's view, her requests "carr[y] all of the hallmarks of [ ] request[s] being made by an employee and/or union member" because she prepared them on ATU Local 1212 letterhead and signed them as the president of ATU Local 1212. [ Id. at 16–17]. ATU and ATU Local 1212, however, contend that CARTA's position "make[s] no sense." [Pls.' Resp. Mot. Summ. J. at 10]. Although "[a] Local 1212 officer or member may be a CARTA employee," they argue, "it is not part of that member's ‘official duty’ as a CARTA employee to act as a union officer or union member." [ Id. ].
In addressing the parties' arguments, the Court first notes that the Supreme Court in Garcetti "ha[d] no occasion to articulate a comprehensive framework for defining the scope of an employee's duties," because the parties in that case did not dispute that the deputy district attorney wrote his memo in the course of his official duties. Garcetti , 547 U.S. at 425, 126 S.Ct. 1951 . After Garcetti , however, the Sixth Circuit promulgated several factors for courts to consider when determining whether a plaintiff's speech arose during the performance of her official duties, and they include "employment duties, the impetus for her speech, the setting of her speech, the speech's audience, and its general subject matter." Weisbarth v. Geauga Park Dist. , 499 F.3d 538, 546 (6th Cir. 2007). But more recently, the Supreme Court, in Lane , instructed courts to consider simply whether the speech at issue is "ordinarily within the scope of an employee's duties." 573 U.S. at 240, 134 S.Ct. 2369 . In response, the Sixth Circuit has appeared to condense its analysis of whether speech arises during the performance of an employee's duties. See Boulton , 795 F.3d at 534 ("After Lane , the Garcetti exception to First Amendment protection for speech ... must be read narrowly as speech that an employee made in furtherance of the ordinary responsibilities of his employment").
The Sixth Circuit has also invited courts to consider whether speech is "nothing more than ‘the quintessential employee beef: management has acted incompletely.’ " Handy-Clay , 695 F.3d at 540 (quotation omitted).
CARTA cannot realistically argue that Ms. Smith's written statements to Chairman Jett arose in the ordinary scope of her employment duties. Ms. Smith is a bus driver, an occupation whose ordinary, day-to-day duty is transportation; she is not a scrivener whose ordinary duty is to pen letters to local board executives. And CARTA's second argument—its view that Ms. Smith was carrying out her ordinary employment duties as a bus driver when she spoke as Local ATU 1212's president—is baseless. See Boulton , 795 F.3d at 534 ("It is axiomatic that an employee's job responsibilities do not include acting in the capacity of a union member, leader, or official."); see also Garcetti , 547 U.S. at 424, 126 S.Ct. 1951 (stating that the inquiry as to whether an employee made her statements in the course of her duties is a "practical one"). The Court has no need for further analysis. Ms. Smith's speech clearly did not arise in the course of her ordinary employment duties with CARTA.
ii. Speech of Public Concern
The question of whether a party's speech is a matter of public concern is one of law. Handy-Clay , 695 F.3d at 543. As a general rule, speech is a matter of public concern "when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community," or "when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Snyder , 562 U.S. at 453, 131 S.Ct. 1207 (quotations omitted). On the other hand, personal matters—like an employee's internal grievance—generally do not constitute speech of public concern. Connick , 461 U.S. at 147, 103 S.Ct. 1684 ; Van Compernolle v. City of Zeeland , 241 F. App'x 244, 250 (6th Cir. 2007). This is so because in the employment arena, a public employee "by necessity must accept certain limitations on his or her freedom" of speech, over which "[g]overnment employers, like private employers, need a significant degree of control" or would have "little chance for the efficient provision of public services." Garcetti , 547 U.S. at 418–19, 126 S.Ct. 1951 (citations omitted).
To determine whether speech constitutes speech of public concern, the Court must examine "the content, form, and context of a given statement, as revealed by the whole record," Connick , 461 U.S. at 147–48, 103 S.Ct. 1684 (footnote omitted), though in some cases "the subject matter of the speech, alone, may resolve the ‘public concern’ question," Jordan v. Carter , 428 F.3d 67, 73 (1st Cir. 2005) (citation omitted); see Boulton , 795 F.3d at 532 (stating that speech pertaining to "corruption and misuse of public funds," "failure to follow state law," "major state policy decisions," or "discrimination of some form" is inherently speech of public concern); Alpha Energy Savers, Inc. v. Hansen , 381 F.3d 917, 927 (9th Cir. 2004) ("Litigation seeking to expose ... wrongful governmental activity is, by its very nature, a matter of public concern."). In vetting the whole record, the Court's ultimate objective is to discern "the point of the speech in question." Hardy v. Jefferson Cmty. Coll. , 260 F.3d 671, 678 (6th Cir. 2001) (quotation omitted).
Noting that Ms. Smith requested permission to speak on "the topics of driver overwork, lack of bathroom breaks for bus drivers, a bus driver shortage, and the effect of all of these matters on public safety," CARTA argues that this case is "a classic example" of an "attempt to portray employee issues as public concerns." [Def.'s Resp. Mot. Summ. J. at 3, 4 (quoting Pls.' Mem. at 4) ]. ATU and ATU Local 1212, however, insist that Ms. Smith's speech is "especially worthy of First Amendment protection" because it concerned matters of collective bargaining, by CARTA's own admission. [Pls.' Resp. Mot. Summ. J. at 12]; see [Def.'s Mem. at 11; Second Jett E mail at 1; Third Jett E-mail at 1]. According to ATU and ATU Local 1212, speech on matters of collective bargaining is "by definition" speech of public concern, and to support this assertion, they cite Janus v. American Federation of State, County, and Municipal Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). [Pls.' Resp. Mot. Summ. J. at 11–12]. CARTA, however, maintains that Janus is not on the same factual footing as this case. [Def.'s Resp. Mot. Summ. J. at 7].
Although one court in this circuit has stated that "discussions surrounding collective bargaining" are "matters of public concern," Int'l Ass'n of Firefighters Local 3233 v. Frenchtown Charter Twp. , 246 F. Supp. 2d 734, 737 (E.D. Mich. 2003) (citations omitted), ATU Local and ATU Local 1212 cite no case in which the Supreme Court or the Sixth Circuit has said so, at least not with the same conviction. In Janus , the Supreme Court acknowledged that unions often express views about "education, child welfare, healthcare, and minority rights" and that "[w]hat unions have to say on these matters in the context of collective bargaining is of great public importance." 138 S. Ct. at 2475 (emphasis added). And similarly, in Harris , the Supreme Court observed that the speech at issue, which it characterized as "germane to collective bargaining," constituted a matter of public concern because it dealt with Medicaid funding, "a matter of great public concern" 573 U.S. at 654, 134 S.Ct. 2618 . A practical-minded reading of Janus and Harris , therefore, supports only the view that speech pertaining to collective bargaining is of public concern when it intersects with education, child welfare, healthcare, minority rights, and other conceptually analogous issues of political, social, or general concern to the community. Simply, neither Janus nor Harris is a truss for ATU and ATU Local 1212's expansive interpretation that all speech tied to collective bargaining is—as a matter of law—universally speech of public concern.
But aside from the issue of collective bargaining, the Court is nonetheless convinced, based on the record as a whole, that at least some of Ms. Smith's speech touches on matters of public concern. See Mayhew , 856 F.3d at 467–68 ("It is not ‘necessary for the entire expression to address matters of public concern, as long as some portion of the speech does.’ " (quotation omitted)). ATU Local 1212's press release—which is, of course, part of the record as a whole—provides the Court keen insights into "the point of" Ms. Smith's requests to speak at CARTA's meetings. Hardy , 260 F.3d at 678 (quotation omitted). ATU and ATU Local 1212 highlight the press release too, arguing that "what CARTA called ‘personnel issues’ were the Local's repeated requests to address a bus driver shortage and public safety, issues that were receiving significant local press coverage." [Pls.' Mem. at 10 n.1].
The press release states that ATU Local 1212 believed that CARTA's bus driver shortage was "threatening safety and service by forcing overtime work," and it contains quotes from Ms. Smith about her perception of the threat to public safety:
• "This is a fatal accident waiting to happen." [Press Release at 1 (emphasis added) ].
• "It's time to ... focus on ensuring safety and service for riders. " [ Id. (emphasis added) ].
• "It's time for CARTA ... to put riders and safety first. " [ Id. (emphasis added) ].
Of particular importance are Ms. Smith's references to the safety of riders rather than to the safety of her co-workers. See Burgess v. Paducah Area Transit Auth. , 387 F. App'x 538, 544 (6th Cir. 2010) ("The communications focused on driver safety and thus had their impetus in plaintiffs' concern for their coworkers, not the safety of passengers." (emphasis added)). Her references to riders' safety are consistent with one of her letters to Chairman Jett, in which she requested permission "to speak about issues that affect the general public in terms of public saftey [sic], etc." [Smith Reply Letter at 1]. Chairman Jett was "aware of" Ms. Smith's "statements to the news media," and he acknowledged that CARTA suffered from "limitations" in its "personnel resources." [Jett E-mail at 1]. Also, when he ultimately granted Ms. Smith permission to speak, he did so on "issues that affect the general public in terms of public safety." [Fifth Jett E-mail at 1].
When Ms. Smith spoke during CARTA's meeting in April 2018, she did in fact address issues affecting riders' safety, including "fatigue[ ]" that bus drivers were experiencing because of the bus driver shortage, [April Meeting Minutes, Doc. 43-13, at 7], though she addressed other issues too, see Mayhew , 856 F.3d at 467–68 ("It is not ‘necessary for the entire expression to address matters of public concern, as long as some portion of the speech does.’ " (quotation omitted)).
So, the record demonstrates that the point of Ms. Smith's speech—from Ms. Smith's perspective as well as Chairman Jett's—was public safety, and courts have routinely found that speech relating to public safety, especially when it has to do with governmental services, like public transit, can "be fairly characterized as constituting speech on a matter of public concern." Connick , 461 U.S. at 146, 103 S.Ct. 1684 (footnote omitted); see Virginian Ry. Co. v. Sys. Fed'n No. 40 , 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937) ("The peaceable settlement of labor controversies, especially where they may seriously impair the ability of an interstate rail carrier to perform its service to the public, is a matter of public concern."); Charvat v. E. Ohio Reg'l Wastewater Auth. , 246 F.3d 607, 617–18 (6th Cir. 2001) (determining that a party's letters about a water-treatment facility's operations were of public concern because they were "designed to increase the awareness of ... threats to the public health and safety of the community"); see also Ulrich v. City & Cty. of S.F. , 308 F.3d 968, 978 (9th Cir. 2002) ("There is a clear ‘public import in evaluating the performance’ of a public agency to assess the ‘efficient performance of its duties.’ " (quoting Connick , 461 U.S. at 148, 103 S.Ct. 1684 )); Moore v. City of Kilgore , 877 F.2d 364, 370 (5th Cir. 1989) ("The public, naturally, cares deeply about the ability of its Fire Department to respond quickly and effectively to a fire. If staffing shortages potentially threaten the ability of the Fire Department to perform its duties, people in the community want to receive such information." (footnote omitted)).
Simply, the community had a manifest interest in hearing Ms. Smith's speech about CARTA's situation with understaffed, overworked, and under-rested bus drivers and, from that speech, making an informed decision about whether to forego public transportation on buses in favor of alternative transportation. And, incidentally, the fact that Ms. Smith, at first, chose to meet privately with CARTA to discuss these public-safety issues does not diminish the value of her speech as speech of public concern. See Perry v. McGinnis , 209 F.3d 597, 608 (6th Cir. 2000) ("[A]n employee's choice to communicate privately with an employer does not strip the concern of its public nature."); Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1 , 131 F.3d 564, 579 (6th Cir. 1997) ("Constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public." (citing Connick , 461 U.S. at 146, 103 S.Ct. 1684 )).
Even if Ms. Smith's speech about CARTA's bus driver shortage is not of public concern, the fact that Ms. Smith also sought to speak about racial and sexual discrimination unequivocally nudges her speech into the domain of public concern. [Smith Letter at 1]. "[T]he Supreme Court clearly established that racial discrimination is inherently a matter of public concern." Perry , 209 F.3d at 608 (citing Connick , 461 U.S. at 148 n.8, 103 S.Ct. 1684 ); see Boulton , 795 F.3d at 532 (stating that "speech addresses a matter of public concern when it" raises "discrimination of some form"); cf. Bonnell v. Lorenzo , 241 F.3d 800, 812 (6th Cir. 2001) ("[I]t is well-settled that allegations of sexual harassment, like allegations of racial harassment, are matters of public concern." (citing Connick , 461 U.S. at 146, 103 S.Ct. 1684 )).
When Ms. Smith spoke during CARTA's meeting in April 2018, she did in fact address her concerns about discrimination. [ Id. at 6].
CARTA, however, maintains that Ms. Smith's speech equates to nothing more than a personal grievance, or an "issue[ ] of personal concern to the union members and not the public." [Def.'s Mem. at 18]. On the subject of discrimination, specifically, CARTA argues that "[i]f a CARTA employee believes that an act of discrimination has occurred, that employee is entitled to pursue a full set of remedies under the Collective Bargaining Agreement." [ Id. at 25]. But courts feel so strongly about speech related to discrimination that they treat it as a matter of public concern even when it arises as a personal grievance. See Perry , 209 F.3d at 609 ("We find that [the plaintiff's] complaint of racially disparate treatment, which consisted of an internal grievance, is a matter of public concern[.]"); see also Warren v. Ohio Dep't of Public Safety , 24 F. App'x 259, 267 (6th Cir. 2001) ("Allegations of racial and sexual discrimination are inherently matters of public concern even if they are tied to personal employment disputes." (citing Connick , 461 U.S. at 148 n.18, 103 S.Ct. 1684 )).
CARTA also claims Ms. Smith's request to speak about discrimination was too "vague" to warrant inclusion in its meetings. [Def.'s Mem. at 25]. CARTA argues: "When the topic is ‘discrimination’ what is the intended topic? Is it racial discrimination against bus drivers? Discrimination as to clients who use CARTA's services, like the physically handicapped?" [ Id. at 24]. But CARTA's argument is disingenuous in light of the evidence showing that (1) Ms. Smith described the discrimination in relative detail to the press as "discrimination by CARTA management in disciplining African-American and female workers differently than other workers," [Press Release at 1], and (2) Chairman Jett acknowledged that he was aware of Ms. Smith's statements to the press, [Jett E-mail at 1]. Simply, CARTA's efforts to dress Ms. Smith's speech as personal in nature are ineffective. She clearly spoke as a citizen on matters of public concern—in terms of public safety and in terms of racial and sexual discrimination—and her speech is therefore entitled to First Amendment protection of the highest order. Connick , 461 U.S. at 145, 103 S.Ct. 1684 .
2. Balancing of Interests
Having determined that Ms. Smith sought to speak as a citizen on matters of public concern, the Court must now consider whether CARTA violated the First Amendment. Whether the parties fully realize it or not, they compel the Court to come to a decision by viewing this case through the prism of the venerable Pickering framework—a balancing test that the Supreme Court conceived in Pickering v. Board of Education of Township High School District 205 , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering , the Supreme Court held that a board of education infringed a teacher's free-speech rights when it terminated him after he was critical of the board in a letter to a local newspaper's editor. 391 U.S. at 574–75, 88 S.Ct. 1731 . In doing so, the Supreme Court identified "two inquiries to guide interpretation of the constitutional protections accorded to public employee speech." Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 .
Under the first Pickering inquiry, this Court must determine whether the employee spoke "as a citizen on a matter of public concern," id. (citing Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ); see U.S. v. Nat'l Treasury Emps. Union , 513 U.S. 454, 466, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) ("[W]e have applied Pickering 's balancing test only when the employee spoke ‘as a citizen upon matters of public concern’ rather than ‘as an employee upon matters only of personal interest.’ " (quoting Connick , 461 U.S. at 147, 103 S.Ct. 1684 ))—a determination that the Court has already made in this case. Under the second Pickering inquiry, the Court must determine "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ). In deciding whether an adequate justification exists for differential treatment, the Court balances "the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering , 391 U.S. at 568, 88 S.Ct. 1731 .
i. The Applicability of Pickering
Although ATU and ATU Local 1212 directly ask the Court to apply the Supreme Court's more stringent balancing test in United States v. National Treasury Employees Union , 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (" NTEU ")—not the "more lenient" Pickering balancing test—because they believe that CARTA has enacted a prior restraint on speech, the Court will decline to apply NTEU . [Pls.' Mem. at 9–10; Pls.' Resp. Mot. Summ. J. at 12–13]. ATU and ATU Local 1212's request for the Court to apply NTEU is untenable in light of their exclusive reliance on Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission , 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976). See [Pls.' Mem. at 10 (arguing that Madison "controls the outcome here"); Pls.' Resp. Summ. J. at 2 (arguing that "CARTA's [position] is in direct conflict with the Supreme Court's decision in Madison ") ]. ATU and ATU Local 1212 overlook the fact that Madison is a Pickering case. See Madison , 429 U.S. at 175, 97 S.Ct. 421 (quoting and relying on Pickering ); see also Garcetti , 547 U.S. at 429, 126 S.Ct. 1951 (Souter, J., dissenting) (recognizing that "[ Madison ] was decided, in part, with reference to the Pickering framework"). ATU and ATU Local 1212 cannot, in one breath, argue that Madison is dispositive and, in the next breath, peddle a non- Pickering balancing test to the Court.
In National Treasury Employees Union , the Supreme Court addressed the constitutionality of a law that acted as a "wholesale deterrent to a broad category of expression by a massive number of potential speakers." 513 U.S. at 467, 115 S.Ct. 1003 (footnote omitted). The Supreme Court concluded that the law's "widespread impact" gave rise to "serious concerns," and it therefore concluded that "[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's ‘necessary impact on the actual operation’ of the Government." Id. at 468, 115 S.Ct. 1003 (quotation omitted).
ATU and ATU Local 1212 also attempt to downplay Pickering —which, like Garcetti , has its origins in an employment dispute—as a mere "reprisal case[ ]." [Pls.' Resp. Summ. J. at 12, 13]. While the Supreme Court has acknowledged that it "usually " applies Pickering to cases that "involve[ ] disciplinary actions taken in response to a government employee's speech," Nat'l Treasury , 513 U.S. at 466, 115 S.Ct. 1003 (emphasis added), it has not confined its application of Pickering to cases with underlying disciplinary action. For example, in NTEU —a case that did not involve disciplinary action—the Supreme Court relied heavily on Pickering to address the constitutionality of a federal statute that various federal employees had challenged. 513 U.S. at 461–70, 115 S.Ct. 1003 . And in United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO , 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) —a declaratory judgment action—the Supreme Court applied Pickering to a facial challenge that federal employees brought against a statutory restriction, without any indication that they had been subject to prior discipline. Id. at 564–67, 93 S.Ct. 2880 .
The only preconditions the Supreme Court appears to have placed on a Pickering analysis is that (1) a governmental entity must "suppress the right[ ] of [a] public employee[ ]," Connick , 461 U.S. at 144, 103 S.Ct. 1684 , (2) to speak "as a citizen upon matters of public concern," Nat'l Treasury , 513 U.S. at 466, 115 S.Ct. 1003 . See Melzer v. Bd. of Educ. of City Sch. Dist. of City of N.Y. , 196 F. Supp. 2d 229, 245 (E.D.N.Y. 2002) (" Pickering balancing is triggered whenever a public employee's expressions on matters of public concern are sought to be circumscribed by governmental interdiction."); see also Berger v. Battaglia , 779 F.2d 992, 997 (4th Cir. 1985) (recognizing that Pickering generally embodies "the clash of public employee and public employer interests in employee speech rights in its most direct and easily identified form: the employee's right to criticize or disagree with governmental operations versus the governmental interest in avoiding the internally disruptive effect of the very criticism or disagreement").
So, this Court has no reluctance in applying Pickering to this case, particularly in light of the fact that CARTA, like ATU and ATU Local 1212, also entreats the Court to apply it. CARTA's request for a Pickering analysis is clear-cut because it directly invokes the Pickering balancing test: "[T]he speaker's interest as a citizen in speaking on the matter [must] outweigh the state's interest, as an employer, in promoting the efficiency of the public services it performs through its employees." [Def.'s Mem. at 14]. CARTA, however, also asks the Court to conduct a forum analysis in addition to a Pickering analysis and rule that the public-comment sessions of its meetings comprise a limited public forum. [ Id. at 13–14].
"[A] public forum analysis is a location specific [analysis] based on the premise that speech should be afforded greater protection in places traditionally reserved for public discourse." Rosen v. Brown , No. 1:88CV2973, 1990 WL 384957, at *3 n.4 (N.D. Ohio Nov. 7, 1990) (citing Hague v. Comm. for Indus. Org. , 307 U.S. 496, 515–516, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) ). The Supreme Court recognizes three types of public fora, Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez , 561 U.S. 661, 679 n.11, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010), including a limited public forum, which is a government-created forum "limited to use by certain groups or dedicated solely to the discussion of certain subjects," Pleasant Grove City v. Summum , 555 U.S. 460, 470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (citation omitted). In a limited public forum, the government has the "right ‘to preserve the property under its control for the use to which it is lawfully dedicated,’ " Perry Educ. Ass'n , 460 U.S. at 61 n.5, 103 S.Ct. 948 (quotation omitted), and can impose a content-based restriction on speech if it is reasonable and viewpoint neutral, Pleasant Grove City , 555 U.S. at 470, 129 S.Ct. 1125 ; Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp. , 698 F.3d 885, 892 (6th Cir. 2012) ; see generally Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 799, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ("Even protected speech is not equally permissible in all places and at all times.").
But a forum analysis strikes the Court as unnecessary if not mutually incompatible with the Pickering analysis that CARTA also asks it to apply. When acting as an employer, a governmental entity has "substantial leeway" to restrict speech "that the Constitution would otherwise protect," Nat'l Treasury , 513 U.S. at 484, 115 S.Ct. 1003 , because if someone whom the government pays to "contribute to [its] effective operation begins to do or say things that detract from [its] operation, [it] must have some power to restrain her," Waters v. Churchill , 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). A governmental entity's right, under Pickering , to protect its interest in performing its mission as an employer is more incarnate than its right, under a forum analysis, to preserve a limited public forum for its lawfully intended use. See Garcetti , 547 U.S. at 417, 126 S.Ct. 1951 ("[F]or many years, ‘the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.’ " (quoting Connick , 461 U.S. at 143, 103 S.Ct. 1684 )); Nat'l Aeronautics & Space Adm in. v. Nelson , 562 U.S. 134, 148, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) ("Time and again our cases have recognized that the Government has a much freer hand in dealing ‘with citizen employees than it does when it brings its sovereign power to bear on citizens at large.’ " (quotation omitted)); Engquist v. Or. Dep't of Agric. , 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (stating that "there is a crucial difference, with respect to constitutional analysis, between the government exercising the power to regulate" and "the government acting ... to manage [its] internal operation" (internal quotation marks and quotation omitted)); Waters , 511 U.S. at 671–72, 114 S.Ct. 1878 ("[T]he government as employer indeed has far broader powers than does the government as sovereign.").
Because the government's power to regulate speech crests within the employment arena, not in public fora, a collective of courts views a public forum analysis as superfluous in cases in which an employer-employee relationship exists—and this Court agrees with that view. See Johnson v. Poway Unified Sch. Dist. , 658 F.3d 954, 961 (9th Cir. 2011) ("[T]he Supreme Court has held that where the government acts as both sovereign and employer , th[e] general forum-based analysis does not apply." (citing Garcetti , 547 U.S. at 417–19, 126 S.Ct. 1951 ; City of San Diego v. Roe , 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) ; Pickering , 391 U.S. at 568, 88 S.Ct. 1731 )); Toney v. Young , 238 F. Supp. 3d 1234, 1238 (E.D. Cal. 2017) ("Where ‘the government acts as both sovereign and employer,’ however, ‘this forum-based analysis does not apply.’ " (quoting Johnson , 658 F.3d at 961 )); Idaho State Univ. Faculty Ass'n for the Preservation of the First Amendment v. Idaho State Univ. , 857 F. Supp. 2d 1055, 1062 (D. Idaho 2012) ("[A] forum-based analysis is not appropriate ‘where the government acts as both sovereign and employer[.]’ Instead, courts must apply a Pickering balancing analysis[.]" (quoting Johnson , 658 F.3d at 961 ))).
The record in this case incontrovertibly establishes that CARTA was acting not only as a sovereign, Chattanooga, Tenn., Code § 23-1, but also as an employer, [Def.'s Resp. Undisputed Facts at 2]. For one thing, CARTA has identified itself as Ms. Smith's employer, [Def.'s Resp. Undisputed Facts at 2], and it moves the Court to consider its "interest, as an employer" in restricting Ms. Smith's speech, [Def.'s Mem. at 14; see id. at 23 (describing CARTA's "interest in limiting comments to topics directly relevant to [its] business") ]. Also, CARTA has argued throughout this case, though without success, that Ms. Smith acted within the scope of her employment with CARTA when raising the speech at issue. [ Id. at 16–17]. The fact that CARTA took restrictive action against Ms. Smith's speech through board members rather than, say, supervisory officials in its chain of command is of no practical consequence. See Madison , 429 U.S. at 174-76, 97 S.Ct. 421 (referring to the school board, rather than to the school itself, as a school teacher's "employer").
In sum, the Court sees its task as well-defined: it must "reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission." City of San Diego , 543 U.S. 82, 125 S.Ct. 521. In other words, the Court must determine the proper balance between Ms. Smith's interest, as a "citizen employee[ ]," Nat'l Aeronautics & Space Adm in. , 562 U.S. at 148, 131 S.Ct. 746 (quotation omitted), "in commenting upon matters of public concern and the interest of [CARTA], as an employer, in promoting the efficiency of the public services it performs," Pickering , 391 U.S. at 568, 88 S.Ct. 1731 .
ii. Pickering Balancing
"Application of the Pickering balancing test is a matter of law for the court to decide," Farhat v. Jopke , 370 F.3d 580, 593 (6th Cir. 2004) (citation omitted), and it "requires full consideration of the government's interest in the effective and efficient fulfilment of its responsibilities to the public," Connick , 461 U.S. at 150, 103 S.Ct. 1684 . The governmental entity has the burden to justify its actions, and the extent of that burden—or the weight that the governmental entity's interest receives—depends on the nature of the employee's speech. Id. at 150, 152, 103 S.Ct. 1684 ; Miller v. City of Canton , 319 F. App'x 411, 417 (6th Cir. 2009). "[A] stronger showing may be necessary if the employee's speech more substantially involved matters of public concern." Connick , 461 U.S. at 152, 103 S.Ct. 1684 ; see Leary v. Daeschner , 228 F.3d 729, 737–38 (6th Cir. 2000) ("[I]f an employee's speech ‘substantially involved matters of public concern,’ an employer may be required to make a particularly strong showing that the employee's speech interfered with workplace functioning before taking action." (quoting Connick , 461 U.S. at 150–52, 103 S.Ct. 1684 )). When the speech at issue touches on the topic of discrimination, a stronger showing is necessary. Miller , 319 F. App'x at 417.
The Court will first consider whether Madison —a Pickering case itself—is on point with this case. In Madison , the Madison Board of Education and Madison Teachers, Inc. ("MTI"), a labor union that represented teachers, were parties to a collective-bargaining agreement and were negotiating the renewal of that agreement. 429 U.S. at 169, 97 S.Ct. 421 . One point of contention in their negotiations was whether the agreement should contain a fair-share clause, which was MTI's proposal and would have required all teachers to pay union dues even if they chose not to be members of MTI. Id. Two teachers in the district, neither of whom was a member of MTI, were not in favor of the fair-share clause and attempted to rally their fellow teachers by circulating a letter and petition. Id. at 169–70, 97 S.Ct. 421 . More than two hundred teachers—fifty-three percent of the teachers in the district—signed their petition. Id. at 170–71, 97 S.Ct. 421 . After obtaining the signatures, one of the teacher's appeared at an "open" school board meeting, id. at 169, 97 S.Ct. 421 , with the intention of sharing the petition during the meeting's public-comment session, id. at 171, 97 S.Ct. 421 . Although MTI's business representative tried to dissuade him from speaking and even tried to convince the board not to permit him speak, the teacher did speak at the meeting, where he presented the petition for public consumption. Id.
MTI then filed a complaint with the state employment relations commission, claiming that the school board, by allowing the teacher to speak, violated a state statute that prohibited negotiations on collective bargaining with non-union representatives. Id. at 172, 97 S.Ct. 421 . The commission ruled that the board violated the statute and ordered the board to cease and desist from permitting parties other than MTI's representatives to speak "on matters subject to collective bargaining between it and [MTI]." Id. at 173, 97 S.Ct. 421 . The state supreme court affirmed the commission's decision, reasoning that abridgment of the teacher's speech was necessary "to avoid the dangers attendant upon relative chaos in labor management relations." Id.
The United States Supreme Court, however, determined that the restriction against the teacher's speech was unconstitutional. Id . at 173–76, 97 S.Ct. 421 . First, the Supreme Court focused on the fact that the board meeting was "open to the public," id. at 174, 97 S.Ct. 421 (footnote omitted), and it recognized that when a governmental entity opens a meeting to the public, it will have "difficult[y]" finding legal justification for excluding its employees "who are most vitally concerned with the proceedings," id. at 175, 97 S.Ct. 421 (footnote omitted). Second, the Supreme Court homed in on the fact that the teacher spoke to the board "not merely as one of its employees but also as a concerned citizen ," to "express his views on an important decision of his government." Id. (emphasis added). Citing these facts, the Supreme Court held that "when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech." Id. at 176, 97 S.Ct. 421 (citation and footnote omitted).
Although Madison has not received much fanfare recently—the Supreme Court has not cited it in a majority opinion in over three decades—it is applicable to this case on factual and legal grounds. On factual grounds, Madison offers a platform for this case in two important respects. First, like the school board's meeting in Madison , CARTA's meetings are open to the public. [Res. 581 at 1]. Second, like the teacher in Madison , who was an employee but spoke to the board "as a concerned citizen," Madison , 429 U.S. at 175, 97 S.Ct. 421 , Ms. Smith is CARTA's employee but presented her statements to CARTA not in the course of her employment but as a citizen on matters of public concern, see [Press Release at 1 (containing Ms. Smith's multiple references to rider safety and to disparities in how CARTA treats African American and female drivers) ]. On legal grounds, though, CARTA argues that Madison is inapt because its holding dealt with an identity-based restriction, not a content-based restriction: " Madison was about who was allowed to talk, not about the content of their speech." [Def.'s Resp. Mot. Summ. J. at 7].
But the Court's reading of Madison does not support CARTA's argument. The Supreme Court expressly took stock in the fact that the teacher addressed the board to "express his views on an important decision of his government," or on "matters of public [concern] in connection with the operation of the public schools." Madison , 429 U.S. at 175, 97 S.Ct. 421 (emphasis added) (quoting Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ). A speaker's views are a "form of content," Reed , 135 S. Ct. at 2230 (quotation omitted), and when a speaker's views touch on a matter of public concern, as they did in Madison , they carry substantial heft under the First Amendment, id. ; Connick , 461 U.S. at 145, 103 S.Ct. 1684 . Simply, the Supreme Court clearly meant for Madison 's holding to encompass governmental restrictions on content-based speech: "[W]hen the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech." Madison , 429 U.S. at 176, 97 S.Ct. 421 (emphasis added) (citation and footnote omitted).
So as was the case in Madison , CARTA—in closing off Ms. Smith's speech of public concern from its open-door meetings—will have "difficult[y]" finding legal justification for excluding her speech. Id. at 175, 97 S.Ct. 421 (footnote omitted). CARTA tries to formulate this justification by citing its "governmental interest in limiting comments to topics directly relevant to the specific governmental body's business," [Def.'s Mem. at 23], arguing that "[p]ublic entities retain board authority to structure the discussion of matters and to select the topics," [ id. at 22]. But no one disputes this point, see Madison , 429 U.S. at 175 n.8, 97 S.Ct. 421 ("Plainly, public bodies may confine their meetings to specified subject matter[.]"), especially in the employer-employee arena, see Waters , 511 U.S. at 675, 114 S.Ct. 1878 . CARTA's articulation of this point by itself does little for its cause, because the Court has to operate along a spectrum, not in a silo. In other words, the Court has to determine whether CARTA's interest in structuring the discussion of its meetings, as a matter of efficiency, offsets Ms. Smith's First Amendment interest in speaking at those meetings on matters of public concern. Pickering , 391 U.S. at 568, 88 S.Ct. 1731 .
In this vein, CARTA appears to contend that the balance tilts in its favor because Ms. Smith's speech would have created "disruption and inefficiency," [Def.'s Mem. at 27]; it claims that the board "cannot handle the minutia of the everyday workings of a regional transportation entity," [ id. at 25]. In response, ATU and ATU Local 1212 acknowledge that courts have allowed local boards to preserve order at their meetings by preventing "harassing or disruptive conduct," but they argue that courts have done so only when boards act against "actual disruptive conduct that had occurred." [Pls.' Resp. Mot. Summ. J. at 13]. In this case, CARTA's concern about disruption and inefficiency, they argue, is "speculative." [ Id. ].
CARTA identifies no evidence supporting its contention that Ms. Smith's speech would have caused disruption or inefficiency during its meetings. See Miller , 319 F. App'x at 417 ("The City has not put any evidence in the record to support its claim that the press release caused disruption in the workplace."). Instead, CARTA calls on the Court to "imagine" the disruption and inefficiency that Ms. Smith's speech would have created during its meetings, [Def.'s Mem. at 27], and in doing so, it portrays its apprehensions about disruption and inefficiency as purely speculative, see Whitney v. City of Milan , 677 F.3d 292, 298 (6th Cir. 2012) ("[The mayor's] speculative concerns of workplace disharmony are insufficient to overcome [the employee's] interest in speaking as a private citizen on a matter of public concern."); see also Miller , 319 F. App'x at 417–18 (stating that a governmental entity is not entitled to summary judgment when its "interest rests on merely potential harm" (citations omitted)). Also, the fact that CARTA ultimately allowed Ms. Smith to speak at its meetings—multiple times, without any indication of unrest or disorder—belies its argument that a threat of disruption and inefficiency accompanied her speech, or that CARTA was unable to "handle" her speech. [Def.'s Mem. at 25]. And besides, the Supreme Court in Madison held that a governmental entity's mere desire to "avoid" the possibility of "chaos" in a public meeting is an unsatisfactory justification for muffling speech of public concern, even when that speech overlaps with "labor management relations." Madison , 429 U.S. at 173, 176, 97 S.Ct. 421 ; see [Def.'s Mem. at 24–26 (arguing that Ms. Smith's speech implicates the collective bargaining agreement) ].
In sum, CARTA, under Pickering 's balancing test, does not meet its burden of justifying its exclusion of Ms. Smith's speech from its public meetings. The weight of that burden is particularly heavy because Ms. Smith's speech—which touches on issues of public safety and racial and sexual discrimination—ascends to the apex of First Amendment protection. Leary , 228 F.3d at 737–38 ; Miller , 319 F. App'x at 417. Because Ms. Smith sought to speak as a citizen on matters of public concern and because CARTA presents the Court with no evidence of a countervailing interest that justifies the restriction of her speech, CARTA's refusal to permit her to speak at its monthly meetings violated the First Amendment. ATU and ATU Local 1212 are therefore entitled to summary judgment.
Again, "[c]onstitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public." Chappel , 131 F.3d at 579 (citing Connick , 461 U.S. at 146, 103 S.Ct. 1684 ).
The fact that ATU and ATU Local 1212 have brought their claim on behalf of Ms. Smith, who is not a party to this case but is of course a union member, does not scuttle their First Amendment claim on the basis of third-party standing, and CARTA does not argue otherwise. See Allee v. Medrano , 416 U.S. 802, 819 n.13, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) ("[T]he union has standing as a named plaintiff to raise any of the claims that a member of the union would have standing to raise. Unions may sue under 42 U.S.C. § 1983 as persons deprived of their rights secured by the Constitution and laws, and it has been implicitly recognized that protected First Amendment rights flow to unions as well as to their members and organizers." (internal citation and citations omitted)); Memphis Am. Fed. of Teachers, Local 2032 v. Bd. of Educ. of Memphis City Schs. , 534 F.2d 699, 702 (6th Cir. 1976) ("Since a union can act only through its members, actions by state or local officials which allegedly deny the constitutional rights of its members impede equally the rights of the union." (footnote omitted)).
IV. CONCLUSION
In moving for dismissal, CARTA meets its burden of establishing that Count Two is moot but fails to establish that Count One is moot. Although both parties move for summary judgment on Count One, only ATU and ATU Local 1212 meet their burden of demonstrating that they are entitled to summary judgment. The Court therefore ORDERS as follows:
1. CARTA's motion to dismiss [Doc. 63] is GRANTED only as to Count Two. The motion is DENIED in all other respects.
2. CARTA's motion for summary judgment [Doc. 43] is DENIED .
3. ATU and ATU Local 1212's motion for summary judgment [Doc. 46] is GRANTED .
4. CARTA is hereby ENJOINED from enforcing Resolution 581 to prohibit Ms. Smith from speaking on the matters of public concern that the Court has identified in this memorandum opinion.
5. The Clerk of Court is DIRECTED to close this case.
So ordered.