Background
Weston Merriott, an online journalist residing in Bossier Parish, Louisiana, began attending Bossier City Council meetings in 2023 to speak in support of a community term-limits petition. Over successive meetings, he criticized councilmembers for delaying action on the petition, questioned the impartiality of outside counsel hired by the Council, and raised related concerns about Council conduct. Councilmembers repeatedly interrupted him, instructed him to stay on topic, and at the September 5, 2023 meeting, Councilmember Montgomery moved to have him removed. A secretly recorded audio from a post-meeting gathering later revealed that councilmembers had discussed changing public comment rules specifically in reaction to Merriott’s remarks.
On August 15, 2023, the City Council began reading aloud a new decorum policy at the start of each meeting. The policy provided that “[a]ny person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council” unless a majority of the Council voted to permit continued speaking. None of the operative terms—”personal,” “impertinent,” “slanderous,” or “boisterous”—were defined in the policy.
Merriott filed suit under 42 U.S.C. § 1983 and Louisiana’s Open Meetings Law against Bossier City, its City Attorney (in his official capacity), and three councilmembers (in their individual and official capacities). He alleged, among other things, that the policy was facially overbroad, void for vagueness, and an impermissible content- and viewpoint-based restriction. The U.S. District Court for the Western District of Louisiana granted the defendants’ Rule 12(b)(6) motion and dismissed all claims.
The Court’s Holding
The Fifth Circuit, in an opinion by Judge Ramirez joined by Judges Clement and Douglas, affirmed in part and reversed in part. On the facial overbreadth claim, the court held that each of the policy’s four operative prohibitions independently sweeps in a substantial number of constitutionally protected expressions in relation to the policy’s legitimate sweep, with no limiting principle or narrowing construction available from the text. The prohibition on “personal remarks” could bar a citizen from mentioning a councilmember’s name, noting a conflict of interest, or reporting a criminal conviction — speech at the core of First Amendment protection. “Impertinent” and “boisterous” likewise turn entirely on the subjective sensibilities of the listener, a defect the court compared to the ordinance struck down in Coates v. City of Cincinnati, 402 U.S. 611 (1971). The court also reaffirmed its prior holding in Reeves v. McConn, 631 F.2d 377 (5th Cir. 1980), that a bare prohibition on “slanderous” speech is overbroad because it fails to track the constitutional limits established by New York Times Co. v. Sullivan and its progeny.
The court also reversed dismissal of Merriott’s void-for-vagueness claim. Applying a heightened standard because the policy restricts speech, the court held that “personal,” “impertinent,” “boisterous,” and “slanderous” each fail to give speakers reasonable notice of what conduct is prohibited, and that enforcement under all four terms turns entirely on the subjective sensitivity of the listener — the councilmember being addressed. The court distinguished its prior decision in Roy v. City of Monroe, 950 F.3d 245 (5th Cir. 2020), which had upheld a “boisterous” standard, on the grounds that Roy involved a broader statutory scheme interpreted by an authoritative Louisiana Supreme Court opinion neither of which is present here.
Key Takeaways
- A city council decorum policy prohibiting “personal, impertinent or slanderous remarks” and “boisterous” conduct — with no definitions or limiting principles — is facially overbroad under the First Amendment because its unconstitutional applications are substantially disproportionate to its legitimate sweep.
- The same terms are also void for vagueness: enforcement that depends entirely on a listener’s subjective sensitivity violates due process, and a bare prohibition on “slanderous” speech that does not track Sullivan‘s public-official standard is both overbroad and vague under Fifth Circuit precedent dating to Reeves v. McConn.
- A city council meeting is a limited public forum whose purpose is to host public debate — a purpose that weighs against broad speech restrictions and in favor of the “uninhibited, robust, and wide-open” debate protected by the First Amendment.
- A First Amendment overbreadth challenge is procedurally appropriate where the plaintiff identifies realistic potential applications of the policy that are distinct from his own situation, not merely coextensive with it.
Why It Matters
This decision is the Fifth Circuit’s clearest ruling yet that the standard decorum-policy language found in countless city and county council meeting rules — banning “personal,” “impertinent,” or “slanderous” remarks — is constitutionally defective on its face. Local governments across the circuit that rely on similar boilerplate language are now on notice that such policies risk invalidation unless they are tightly defined and limited to conduct that government may constitutionally regulate in a public forum. The decision aligns the Fifth Circuit with the Ninth Circuit’s holding in Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013), creating consistent nationwide pressure on municipalities to reform overbroad decorum rules.
For practitioners, the case underscores that dictionary definitions alone do not save a speech restriction from a vagueness challenge when enforcement turns on a listener’s subjective reaction. It also highlights the procedural significance of Hicks threshold analysis in overbreadth cases: plaintiffs who carefully plead hypothetical applications of a policy distinct from their own conduct can unlock the overbreadth doctrine’s powerful facial-challenge mechanism, even if their own speech was clearly protected.