103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983).
The state may impose a content-based restriction only if there is "a clear and present danger that [the speech] will bring about the substantive evils that [government] has a right to prevent." Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470 (1919). The evil justifying such a restriction must "rise far above public inconvenience, annoyance, or unrest." Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 895, 93 L. Ed. 1131 (1949).
As to the second prong of our inquiry, we find that at the time of the alleged incident the boundaries of the First Amendment right in the context before us were well established for purposes of qualified immunity. In cases factually similar to the one before us, courts have consistently recognized that local officials presiding over duly-called public meetings may offend First Amendment rights when they make ad hoc parliamentary rulings. See Collinson, 895 F.2d 994; Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989); Musso v. Hourigan, 836 F.2d 736 (2d Cir. 1988); Brown v. Smythe, 780 F. Supp. 274 (E.D. Pa. 1991).
The third prong requires us to consider the heart of the matter before us. It also presents us with a subtle issue regarding the objectiveness of Harlow 's standard. We recognize that the Harlow test is objective in the sense that it precludes us from inquiring into whether the relevant government actor was actually aware of the legal standards in question; rather, "the official is charged with such knowledge if the appropriate legal standard is, by objective standards, clearly established at the time the official undertook the activity at issue." Musso, 836 F.2d at 743. Both the Second Circuit in Musso and Judge Phillips in his concurring opinion in Collinson, however, recognized that although Harlow enunciated an objective test, it "cannot in the end avoid the necessity to inquire into official motive or intent or purpose when such states of mind are essential elements of the constitutional right allegedly violated." Collinson 895 F.2d at 1001-02 (Phillips, J., concurring); see also Musso, 836 F.2d at 743. This states the precise problem here.
A. The Claim Against Council President Szafran
Wilkinson claims that Szafran did not permit him to speak at the August 24 Council meeting because Szafran disliked him or because Szafran did not care for comments Wilkinson had made at previous Council meetings. Szafran asserts that his actions were entirely consistent with typically-recognized reasonable restrictions on time, place, and manner. He maintains that his "actions were not directed at the content of Wilkinson's speech, but were instead directed at the manner of his speech and were necessary to prevent undue and continued disruption of the meeting by Wilkinson" (Defendants' Counter-Motion for Summary Judgment at pp. 10-11, hereinafter referred to as "Defendants' Motion") (emphasis in original).
If, after a trial, we as the finder of fact subscribe to Wilkinson's characterization of Szafran's motives, then we may conclude a reasonable person in Szafran's position would have known that his conduct violated clearly established First Amendment standards. The First Amendment extends not only to the content of a person's speech, but to the speaker himself. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784-85, 98 S. Ct. 1407, 1420, 55 L. Ed. 2d 707 (1978). This is sensible because of the often impossible task of distinguishing the message from the messenger. Allowing the state to restrict a person's right to speak based on their identity could quickly lead to the censorship of particular points of view. See, e.g., Laurence H. Tribe, American Constitutional Law, § 12-3, at 796 (2d ed. 1988). Such a result would offend the very core of the First Amendment's protections. Therefore, if Szafran prohibited Wilkinson from speaking because he simply did not like him, Szafran violated Wilkinson's First Amendment rights. Moreover, if Szafran did not allow Wilkinson to speak because, based on prior experience, he knew he did not want to hear what Wilkinson had to say on matters of public concern, then this, too, would constitute an impermissible content-based restriction.
It is equally true, however, that if we believe Szafran's characterization of his motive, to keep the meeting under control and free from rude and irrelevant disruption, then he acted permissibly, without regard to viewpoint or content. See Collinson, 895 F.2d at 1003 (Phillips, J., concurring). In short, Szafran could "rule [Wilkinson] out of order [and not permit him to speak] if he had reason to believe that [action] necessary to avoid disruption of the orderly conduct of the meeting, [but] he could not constitutionally do so if he had no reasonable basis for fearing disruption, or if his actual purpose was to prevent expression of [Wilkinson's] viewpoint . . ." Collinson, 895 F.2d at 1000 (Phillips, J., concurring).
The undisputed evidence shows that Wilkinson spoke at a Council meeting held on July 27, 1992. At that meeting, Szafran and Wilkinson engaged in a heated exchange over matters of public concern. Whether one could characterize Wilkinson's behavior as rude and disruptive is debatable (see Transcript of July 27, 1992 Meeting of Bensalem Township Council at pp. 81-5, 119-20, 127-28, 131, 159, 176-77, 193-95). Additionally, sometime in late June or early July of 1992, Szafran received the following message on his answering machine from Wilkinson:
Hey Joe, this is Art Wilkinson, I just got up and had a chance to read the paper and take a look at your glorious and grand comments made to Adam Bell. I think that a good thing for you to do between now and Monday night's meeting would be to go the [sic ] Bucks County Courthouse and change your name to Costello or Burns because that way I'll feel more comfortable in coming after you like I'm gonna start coming after you now, o.k.? So long.
(Exhibit "C", Transcript of recorded telephone message and Affidavit of Joseph Szafran attached to Defendants' Motion). At an August 24, 1992 Council meeting, Szafran would not permit Wilkinson to speak during the public portion of the meeting, unless he apologized for his past behavior, even though Wilkinson had complied with all of the requirements necessary to participate.
After making a credibility determination at trial we could reasonably draw an inference that Szafran singled out Wilkinson on August 24 because of his dislike of him or of what he had to say. Certainly, Szafran's apparent willingness to permit Wilkinson to speak if he apologized undermines the weight of his proffered motive for silencing Wilkinson. On the other hand, after considering all of the evidence, we could also find, at least on summary judgment motions, that Szafran did not permit Wilkinson to speak in order to keep the meeting under control and free from rude and irrelevant disruption.
Thus, a genuine issue of material fact exists regarding Szafran's motive for silencing Wilkinson.
Accordingly, we shall deny plaintiff's motion for partial summary judgment and defendants' motion for summary judgment with respect to Szafran.
B. The Claims Against Councilwoman Dornisch and Councilman Costello
Wilkinson claims that Dornisch and Costello joined in with Szafran in suppressing his right to speak. He points to the testimony of Councilwoman Jane Faust as evidencing an agreement between these individuals to deny him his civil rights.
The undisputed material facts show that both Dornisch and Costello commented to Szafran before the meeting began that they believed the Council did not have to permit Wilkinson to speak that evening (see Affidavit of Jane Faust PP 8-9; Exhibit "E", Affidavit of Trish Dornisch P 5 attached to Defendants' Motion; Exhibit "F", Affidavit of David Costello P 5 attached to Defendants' Motion). It was Szafran alone, however, as chairman of the meeting, who prohibited Wilkinson from speaking (see August 24 Transcript at pp. 175-76; Affidavit of Trish Dornisch P 6; Affidavit of David Costello P 6).
Wilkinson has not presented any evidence to show that Dornisch and Costello joined with Szafran in allegedly depriving him of his First Amendment rights. On the contrary, the transcript of the August 24 meeting reveals, and the defendants concede, that the power to yield the floor to an individual who wished to speak lay solely with Szafran, in his capacity as Council President (see August 24 Transcript at pp. 175-76 and Defendants' Motion at pp. 16-17). Under these circumstances, no "fairminded [finder of fact] could return a verdict for the plaintiff on the evidence presented", Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.
Moreover, any claim Wilkinson is asserting against Dornisch and Costello for failing to prevent Szafran from violating his First Amendment rights must fail as a matter of law. As the Second Circuit stated in Musso :
As a general rule, a government official is not liable for failing to prevent another from violating a person's constitutional rights, unless the official is charged with an affirmative duty to act.
836 F.2d at 743, referring to Rizzo v. Goode, 423 U.S. 362, 376-77, 96 S. Ct. 598, 606-07, 46 L. Ed. 2d 561 (1976). That Court went on to conclude, and we agree, that no such "clearly established" affirmative duty to prevent one council member from infringing the First Amendment interests of a potential speaker existed. Id. at 743-44.
Dornisch and Costello had no affirmative, clearly established duty as Councilmembers to prevent Szafran's alleged infringement of Wilkinson's constitutional rights. We therefore conclude that the doctrine of qualified immunity protects their failure to act. Consequently, we shall grant defendants' motion for summary judgment with respect to Dornisch and Costello.
C. The Claim Against Bensalem Township
Wilkinson claims that we should not grant summary judgment to the Township because "[a] municipality acts through its agents, who in this case are a majority of the Bensalem Township Council" and they "created the requisite policy which makes it liable for the illegal act to suppress Mr. Wilkinson's Constitutional rights . . ." (Plaintiff's Memorandum of Law in Opposition to Defendants' Counter-Motion for Summary Judgment at pp. 6-7).
The Supreme Court's teaching in Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978) is squarely contrary to plaintiff's statement:
[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.