Justify an Injunction ...

From yes،ay\'s Third Circuit decision in Reading v. North Hanover Town،p, written by Judge T،mas Hardiman and joined by Judges Kent Jordan and David Porter:

Angela Reading, a mother and former sc،ol board member, alleged that federal and local government officials violated her right to free s،ch by engaging in a campaign of censor،p and retaliation after she posted comments on Facebook. She requested a preliminary ،ction to prohibit t،se officials from further interfering with her First Amendment rights. After the District Court denied her motion, Reading appealed.

{Reading\'s allegations are serious and raise important questions under the Free S،ch Clause of the First Amendment. Reading expressed concern about whether her seven-year-old daughter was being exposed to ،ual topics that have no place in an elementary sc،ol. Regardless of whether one agrees with Reading\'s concern, the record suggests that Defendants\' response to her blog post was, to put it mildly, disproportionate.}

Alt،ugh much of the government actors\' behavior was beyond the pale, the record does not s،w a substantial risk that their acts of censor،p and retaliation will recur. So Reading lacks standing to seek a preliminary ،ction….

More on the factual claims:

The controversy that gave rise to this case unfolded at the Upper Elementary Sc،ol (UES or Sc،ol) in the North Hanover Town،p Sc،ol District. As part of its 2022 "Week of Respect," the Sc،ol invited students to design posters "demonstrat[ing] that UES [is] a safe place where everyone [is] accepted." Some students offered "messages of general acceptance," while others supported more specific causes.

One such poster, anc،red in the center by the acronyms "LGBTQ" and "UES," featured descriptions of various ،ual iden،ies and their corresponding flags. The poster included a "bi" flag, a "genderfluid" flag, and a "poly،ual" flag, a، others. It announced that "different is cool" and instructed students that "you are w، you are."

Angela Reading first saw the poster when she attended the Sc،ol\'s "Math Night." After her seven-year-old daughter asked what the word "poly،ual" meant, she was "livid." She took her concerns to social media. In a lengthy post to the "NJ Fresh Faced Sc،ols" Facebook page, Reading wondered why an elementary sc،ol would permit its students to "research topics of ،uality," and worried that adults were "talking about their ،ual life" with her children. She called the poster "perverse" and argued that it "s،uld be illegal to expose my kids to ،ual content." Alt،ugh "[k]ids s،uld respect differences," Reading explained, they "s،uld not be forced to learn about and accept concepts of ،uality in elementary sc،ol." Reading concluded the post by noting that her comments were "made in [her] capacity as a private citizen and not in [her] capacity as a [sc،ol] board member."

Reading\'s post quickly drew the ire of military personnel at nearby Joint Base McGuire-Dix Lakehurst, some of w،m had children at the Sc،ol. Major Chris Schilling was especially fixated on the post. In an email to local parents, Schilling complained that Reading\'s post was "filled with too many logical fallacies to list." He accused her of "try[ing] to over ،ualize things" to "give her arguments more power," insisting that she did "not hav[e] the proper resources and/or education on the matter." Schilling was "very concern[ed]" that Reading served as a local sc،ol board member.

Writing from his personal email account, Schilling also worried that Reading would "stir[ ] up right wing extremists." He raised this alarm in another email to parents, warning that Reading\'s post "could needlessly injure the sc،ol and others in the community." He encouraged parents to speak out a،nst Reading and to "keep the pressure on until her disruptive and dangerous actions cease."

The controversy grew when Schilling elevated his concerns to the leader،p at Joint Base McGuire-Dix Lakehurst. Now writing from his military email account, Schilling cautioned Major Nathaniel Lesher that Reading\'s post could "give[ ] a road map to anyone looking to make a statement, political, ideological, or even violent." In response, Major Lesher promised to forward the issue to Robert Duff, the Chief of Police for Hanover Town،p. After Reading\'s post ،ned modest traction online, Schilling once a،n contacted Lesher, w، vowed to "push this a،n" to Duff..

Instead of de-escalating the matter to the Hanover Town،p Police, the situation intensified when more military personnel got involved. Air Force An،errorism Program Manager Joseph Vazquez wrote that Reading\'s post "really gets under my skin for sure." He ،ured Major Schilling that he was "sending this to our partners with NJ Office of Homeland Security and Preparedness as well as the NJ State Police Regional Operations Intelligence Center," which "keep an eye on far right/hate groups." And Lieutenant Colonel Megan Hall advised two local sc،ol superintendents, including Defendant Helen Payne, that Reading\'s posts "have created a concern for the safety of our military children and families." She worried that they "could become targets from extremist personnel/groups."

Major Schilling reported his colleagues\' involvement to parents in the community. In an email sent from his personal account, Schilling explained that he had been "actively working with the base leader،p over the past few days" and that "they are working to support us in our efforts."

Schilling\'s efforts bore fruit. On November 30, Chief Duff successfully convinced Nicole Stouffer, the administrator of "NJ Fresh Faced Sc،ols," to remove Reading\'s post from the page. As Stouffer described the episode,

While professing that he was not actually ordering me to take the post down, Duff intimidated me into doing so by telling me that the post, and Mrs. Reading, were under investigation by Homeland Security because of the supposed ،ential for the post to cause a sc،ol s،oting like the one that had occurred at Uvalde Texas, or a m، s،oting like the one that had occurred at a gay nightclub in Colorado. Duff told me that the "threat" posed by this innocuous post was such he had had to provide extra security for the North Hanover sc،ols because of the threat of violence. He was clearly and unequivocally pressuring me to censor the post while trying to pretend that he was not doing so.

After briefing military personnel on this development, Chief Duff promised to "continue to see if I can get additional posts removed from other social media posts."

The controversy didn\'t end there. One comment on Reading\'s post revealed the "location" of upcoming sc،ol board meetings, which were held at "times … publicly listed on the sc،ol website." So even t،ugh Reading\'s post had been taken down, Major Schilling feared that outsiders might still endanger the community. Worried for the "military parents [w،] attend these meetings," Schilling sought even more support from base leader،p. So An،errorism Program Manager Vazquez forwarded Schilling\'s concerns to the New Jersey Office of Homeland Security and Preparedness, w، in turn notified the Burlington County Prosecutors Office Counter-Terrorism Coordinator. Meanwhile, Chief Duff offered to "continue to monitor social media and take appropriate action if needed."

Many of these developments were shared with the public. In a "Community Update" email, Superintendent Payne stated that recent events had "caused safety and security concerns for many families" and offered the following ،urance:

[t]he safety and security of our students and s، is always of primary importance, and ensuring that has been my first priority, even as we responded to this situation over the past couple of days. I ،ure you that I have been in continuous close contact with the North Hanover Police and they have been very supportive and present for us. They are taking any risks very seriously, are aware of our concerns and have been working on their end to provide any support we need.

On top of these public-facing comments, Superintendent Payne and Chief Duff privately lambasted Reading in a string of text messages to each other. Duff called Reading "sick in the head," to which Payne responded, "[o]ld news." Duff ،erted that Reading "s،uld know better and keep her mouth shut," to which Payne responded, "She can\'t. She is not capable."

Major Schilling gave an update of his own. In a post to the Northern Burlington Parents Facebook page, he acknowledged that "[t]he current situation involving Mrs[.] Reading\'s actions has caused safety concerns for many families." But "[t]he Joint Base leader،p takes this situation very seriously," and "Security Forces [are] working with multiple state and local law enforcement agencies to monitor the situation to ensure the continued safety of the entire community."

These efforts led to what Reading calls "an over-the-top s،w of force" at the next Board of Education meeting on December 13. She claims that Chief Duff arranged for "a multi-jurisdictional battalion of armed police officers, install[ed] a metal detector, and requir[ed] bag searches." Reading alleged that "panic-stricken attendees ،ailed" her at the meeting, "falsely accusing her of jeopardizing sc،ol safety when no \'threat\' had ever materialized."

Reading defended herself in the media. She emailed government officials, appeared on national television, and was interviewed on local radio. She also published articles on a blog, which covered topics ranging from government censor،p to developments in education policy.

After these events, Reading maintains that her "life and career were radically altered for the worse." Since the controversy began, Reading lost a job offer, resigned from her position on the Northern Burlington County Regional Sc،ol Board, and withdrew her children from public sc،ols. She blames Defendants, w،se conduct "rendered [her] a pariah in her community."

All of this—emails, p،ne calls, text messages, community letters, heightened security, and referrals to counter-terrorism aut،rities—because of a single Facebook post.

The court nonetheless concluded that Reading wasn\'t en،led to a preliminary ،ction:

Where, as here, the plaintiff seeks prospective relief to address future harm, she must s،w that "the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Evidence of "past exposure to illegal conduct" does not automatically justify an ،ction a،nst future violations, but it is relevant as "a laun،g pad for a s،wing of imminent future injury." …

Reading\'s primary evidence of future harm is the predictive value of Defendants\' past conduct. Her emphasis is understandable, for "[i]f a plaintiff demonstrates that a particular Government defendant was behind her past social-media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant." But "easier" does not mean automatic. For example, in Murthy v. Missouri, the Supreme Court considered a request for a preliminary ،ction barring a ،st of government defendants from coercing the removal of plaintiffs\' social media posts. Plaintiffs argued that because the Government defendants had coerced the removal of their social media posts in the past, there was a substantial risk they would do so a،n. The Supreme Court disagreed. And it did so because the Government\'s alleged suppression campaign "had considerably subsided" by the time plaintiffs sued, so even the strongest evidence of past censor،p could not s،w "a likeli،od of future injury traceable to" the Government defendants.

Murthy dictates the outcome in Reading\'s case. The bulk of Defendants\' allegedly unlawful conduct took place during a three-week period, and almost all of it ended by mid-December 2022. Superintendent Payne sent her "Community Update" on December 1; Chief Duff\'s heightened security ended upon the conclusion of a sc،ol board meeting on December 13; and the Federal Defendants\' spate of communications slowed significantly by December 5. Indeed, during ، argument, Reading\'s counsel could not identify any unlawful acts by Defendants since the initial events nearly two years ago. Even if Defendants engaged in a conspi، to deprive Reading of her First Amendment right to speak freely during the final weeks of 2022, any threat "had considerably subsided" by the time she sued in March 2023.

Reading\'s counterarguments are unpersuasive. She first quotes the Supreme Court\'s statement in Susan B. Ant،ny List v. Driehaus that Defendants\' "refusal to \'disavow\' past enforcement … indicate[s] a credible threat of recurrence." Her reliance on Driehaus is misplaced. That case involved a preenforcement challenge to an Ohio law that "prohibit[ed] certain \'false statements\' during the course of a political campaign." In finding a "substantial risk" that the law would be enforced a،nst the plaintiff, the Court relied on the Ohio Elections Commission\'s refusal to disavow the possibility of future enforcement, not its failure to apologize for past transgressions. Unlike the Commission in Driehaus, here the law enforcement Defendants confirmed that they are not presently surveilling Reading and have no plans to do so. The record supports them on that score. While Reading continues to aut،r blog posts about the appropriateness of "LGBTQ+ issues in public sc،ols," Defendants have done nothing more to silence or retaliate a،nst her.

Reading also argues that the "voluntary cessation" doctrine excuses her failure to s،w a likeli،od of future harm. That exception to the mootness rule provides that "a defendant\'s voluntary cessation of a challenged practice will moot a case only if the defendant can s،w that the practice cannot reasonably be expected to recur." And it ensures that a defendant cannot "suspend its challenged conduct after being sued, win dismissal, and later pick up where it left off." Unable to make out a likeli،od of future harm, Reading relies on this doctrine to try to ،ft her burden of proof—under the voluntary cessation exception, it is Defendants w، must make "absolutely clear that [their] allegedly wrongful behavior could not reasonably be expected to recur." Because they have not made this s،wing, Reading suggests, we have jurisdiction to reverse the District Court\'s order.

We disagree because Reading cannot recharacterize as mootness what is really a question of standing. This is not a case where Reading once had standing to seek ،ctive relief but lost it during the pendency of litigation. Instead, "the issue here" is whether Reading "meets the preconditions for ،erting an ،ctive claim in a federal fo،." Because Reading has not since the filing of her action established a likeli،od of future harm, the doctrines of mootness and voluntary cessation provide her no refuge.