Judge rejects ‘infamous’ commenter’s assertion that city’s rules are unconstitutionally vague; throws out some claims, allows others

photo by: Lawrence City Commission screenshot

Justin Spiehs speaks during public comment Tuesday, April 2, 2024, at the Lawrence City Commission meeting.

Updated at 6:15 p.m. Wednesday, April 3, 2024

Lawrence’s “most infamous” commenter has failed to demonstrate that the City Commission’s rules about comments at public meetings are unconstitutionally vague or that the city engaged in unlawful viewpoint and content discrimination against him.

Federal Judge Julie Robinson in an order this week, using Justin Spiehs’ self-identification as “the most infamous and outspoken public speaker,” dismissed those claims from Spiehs’ lawsuit against the city and two of its former mayors, but she has allowed other claims to move forward, including Spiehs’ contention that the city retaliated against him and denied him equal protection. Robinson also declined to dismiss former mayors Lisa Larsen and Courtney Shipley as defendants based on their claims of qualified immunity.

As the Journal-World has reported, Spiehs’ lawsuit against the city stems from a series of City Commission meetings in 2022 and 2023 in which Spiehs offered public comment that was deemed disruptive and not germane to the city’s business. On a couple of occasions Spiehs, who frequently swears at public officials and calls them insulting names like “Nazi,” “idiot,” “child abuser” and “mother(f-word),” was removed from the meeting after ignoring warnings from the mayor.

Spiehs has contended that the city’s “germane” standard for public comment is unconstitutional because it is vague and depends too much on discretionary or arbitrary enforcement. He also has challenged the city’s “decorum” standard, which prohibits disruptive behavior and slanderous speech, among other behaviors.

The city has argued that those standards are not impermissibly vague because they can be understood by people of ordinary intelligence. The city also argued that discretion in enforcing a rule does not render it unconstitutionally vague, and the court agreed on both counts in dismissing Spiehs’ claims.

Spiehs also argued that even if the city’s rules are constitutional on their face, they were enforced against him in a discriminatory manner, a claim that the court rejected.

“Defendants’ motion to dismiss Plaintiff’s as-applied claim based on content- and viewpoint-discrimination is granted,” Robinson wrote. Defendants include the City Commission, Larsen and Shipley.

The judge also threw out Spiehs’ claims that the city violated his free speech rights by preventing him from clapping for other speakers based on his viewpoint. Robinson said that Spiehs offered no facts to support that claim.

Attendees at City Commission meetings are regularly requested to refrain from clapping. Spiehs, however, argued that in prohibiting clapping the city was “compelling” him to thereby express disapproval, a claim that Robinson also rejected.

Robinson, however, allowed other claims by Spiehs to proceed to further stages of litigation, including his claim that a City Commission meeting is a “designated public forum” and not a “limited public forum” as the city has argued. The government’s right to restrict speech in a designated public forum is more strictly limited and scrutinized than its right to do so in a limited public forum.

Robinson notes in her ruling that it’s an open question of law which category city meetings fall into and allowed the litigation to proceed on that basis.

She also allowed to proceed Spiehs’ claim that the city retaliated against him because removal from a city meeting, objectively speaking, could have a chilling effect on a person’s willingness to engage in protected activity, even though Spiehs himself, as a subjective matter, was not deterred from speaking again.

“At this stage of the litigation, Plaintiff need not conclusively prove that the removals would chill speech. Plaintiff need only allege sufficient facts to demonstrate entitlement to present evidence on his claim,” Robinson wrote.

As to qualified immunity for Larsen and Shipley, Robinson wrote that neither was entitled to that “at this stage of the litigation.”

She noted that the former mayors’ broad assertion of qualified immunity was not sufficient and that they would be required to separately address Spiehs’ specific allegations of violating his rights. The court, she wrote, must be able to conduct “individualized analyses for each Defendant to determine whether either of them is entitled to qualified immunity.”

Regarding Spiehs’ claim that his equal protection rights were violated by the city, Robinson let the matter move forward because she said the city failed to address the claim in its motion to dismiss.

Spiehs has also filed federal lawsuits against Douglas County commissioners, the Douglas County sheriff and county clerk, the Lawrence school district and school board members and the Lawrence Public Library for alleged violations of his First Amendment rights.

Spiehs frequently protested mask requirements during the pandemic and has been convicted of criminal charges in Douglas County for an incident that took place at one of his protests. In November 2021, he was protesting at a coronavirus vaccine clinic at West Middle School and allegedly confronted a man and his 9-year-old son. Spiehs was accused of tearing the paper off of his protest sign, shouting at the man and child and threatening them with the large stick that the sign was attached to. He was originally charged with two felony counts of aggravated assault and one count of interference with a law enforcement officer, but in 2022 he entered a plea agreement and was instead convicted of two misdemeanors, endangerment and endangerment of a child. He was granted probation in August 2022, as the Journal-World reported.

Spiehs, displaying a sign that read in part “(f-word) these liberal mother(f-word),” was also arrested at a Douglas County Commission meeting in April 2022. He had filed as a Republican candidate for County Commission that year. Spiehs did not face charges in that incident.

On Wednesday evening, Spiehs appeared at the Douglas County Commission meeting with a sign calling a commissioner an obscene name and berated the commissioner in obscene language for a full three minutes regarding an issue that took place outside of a commission meeting. Though she had read a statement saying that the commission reserved the right to remove any speaker whose comments were threatening, aggressively hostile or belligerent, Commission Chair Karen Willey sat in silence as Spiehs verbally attacked her fellow commissioner.


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