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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHER DISTRICT OF TEXAS

FORT WORTH DIVISION

Mitchell Ryan

Plaintiff,

v.

Grapevine-Colleyville Independent School 

District and Jorge Rodriguez in his official 

capacity as GCISD School Board President

Defendants.

Civil Action No. 4:21-cv-01075-P

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR TEMPORARY 

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Comes Now Plaintiff Mitchell Ryan (“Mr. Ryan”) and files this Brief in support of 

his Motion for Temporary Restraining Order and Preliminary Injunction.

Background

Grapevine-Colleyville Independent School District allows 30 minutes for citizens 

to address the board at its meetings during an open public forum. Citizens are allowed to 

address the board for no less than one minute.

While citizens are generally unrestricted in the issues they may bring to the 

board’s attention during the open public forum portion of the meeting, the board has 

published an official policy restricting citizens from mentioning names of district staff 

members (the “Speech Content Policy”). The Speech Content Policy specifically states:

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Attacks of a personal nature against Board members, GCISD 

staff, students or other citizens will not be allowed or 

tolerated. Speakers must refrain from mentioning specific 

names of staff members during their comments.1

Mr. Ryan attended the board’s August 23, 2021, meeting and attempted to 

comment regarding Principal James Whitfield, principal of GCISD’s Colleyville Heritage 

High School. During his comments, Mr. Ryan was interrupted repeatedly by GCISD 

School Board President Jorge Rodriguez and disallowed from continuing his comments 

regarding Principal Whitfield.

In addition to applying the Speech Content Policy against Mr. Ryan, President 

Rodriguez also engaged in viewpoint discrimination against Mr. Ryan by applying an 

unpublished Ad Hoc Viewpoint Policy against his speech. This is evidenced by President 

Rodriguez’s decision to allow a woman to mention Principal Whitfield’s name three times 

while offering comments favorable to Principal Whitfield at the August meeting.

In a comment on Facebook, President Rodriguez explained the bounds of his Ad 

Hoc Viewpoint Policy, how it differs and conflicts with the clear text of the Speech 

Content Policy, and how he had applied it against Mr. Ryan while allowing another 

woman to speak in apparent violation of the Speech Content Policy. President Rodriguez 

wrote:

1 GCISD Board Meeting Decorum, Grapevine Colleyville Independent School 

District, https://www.gcisd.net/news/what_s_new/gcisd_board_meeting_decorum

(last visited September 20, 2021).

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[M]entioning a name is not against the rules. Making a 

complaint about an individual by name or title is. I had to wait 

until he made a complaint to stop him. The same applies to the 

lady that mentioned the name of the principal three times. She 

was expressing support, and that was within the rules. I will 

explain this again before the next Open Forum. Fortunately 

62 out of 63 speakers played by the rules.

Until he made this confession in his online comments it had appeared to Mr. Ryan 

that President Rodriguez was enforcing the Speech Content Policy in cutting off his 

comments during the August meeting. However, it appears that Principal Rodriguez 

instead intends to enforce his Ad Hoc Viewpoint Policy at upcoming meetings.

Mr. Ryan intends to attend the scheduled September 27, 2021 7:00pm GCISD 

board meeting, along with other future board meetings, and to address the board 

regarding Principal Whitfield again. He expects, however, that his comments will again 

be cut off by President Rodriguez through President Rodriguez’s enforcement of either 

the Speech Content Policy or the Ad Hoc Viewpoint Policy.

Legal Standard

There are four prerequisites for a temporary restraining order or preliminary 

injunction. To prevail, a plaintiff must demonstrate: (i) a substantial likelihood of success 

on the merits; (ii) a substantial threat of immediate and irreparable harm, for which he has 

no adequate remedy at law; (iii) that greater injury will result from denying the temporary 

restraining order than from its being granted; and (iv) that a temporary restraining order 

will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); 

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Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en 

banc).

“Underlying the grant of such relief must . . . be an evaluation of the equitable 

considerations involved: the plaintiff’s likelihood of prevailing on the merits, the 

possibility of irreparable harm to the plaintiffs, the counterbalancing risk of harm to the 

defendants, and the public interest.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 

1976). A plaintiff is not, however, required to prove its entitlement to summary judgment

in order to establish “a substantial likelihood of success on the merits” for preliminary 

injunction purposes. See ICEE Distribs., Inc. v. J&J Snack Foods Corp., 325 F.3d 586, 596 

n. 34 (5th Cir. 2003); Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009).

“None of [these] four requirements has a fixed quantitative value.” Monumental 

Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 582 (E.D. La. 2016) (citing Texas v. 

Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975)). Instead, “a sliding scale is 

utilized, which takes into account the intensity of each in a given calculus.” Id. Thus, in 

applying the four-part test, the Court must conduct “a delicate balancing,” which weighs 

“the probabilities of ultimate success at final hearing with the consequences of immediate 

irreparable injury that possibly could flow from the denial of preliminary relief.” Id. 

Mr. Ryan is Likely to Prevail on the Merits of His Claims

There is a substantial likelihood Mr. Ryan will prevail on the merits of his claims. 

GCISD’s Speech Content Policy expressly prohibits speech on the basis of its content—

whether the speaker mentions a district employee by name. This content-based speech 

restriction is presumptively unconstitutional. 

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The Supreme Court recently strengthened and clarified its application of strict 

scrutiny to content-based speech restrictions in Reed v. Town of Gilbert, 576 U.S. 155 

(2015). “[A] clear and firm rule governing content neutrality is an essential means of 

protecting the freedom of speech, even if laws that might seem ‘entirely reasonable’ will 

sometimes be ‘struck down because of their content-based nature.’” Id. at 171.

The Supreme Court held that even “facially content-neutral laws, will be 

considered content-based regulations of speech” if the laws “cannot be ‘justified without 

reference to the content of the regulated speech.” Id. at 164 (emphasis added). In fact, 

“[a]n innocuous justification cannot transform a facially content-based law into one that 

is content neutral.” Id. at 166. “Because strict scrutiny applies either when a law is 

content based on its face or when the purpose and justification for the law are content 

based, a court must evaluate each question before it concludes that the law is content 

neutral and thus subject to a lower level of scrutiny.” Id.

“Innocent motives do not eliminate the danger of censorship presented by a 

facially content-based statute, as future government officials may one day wield such 

statutes to suppress disfavored speech. That is why the First Amendment expressly 

targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely 

the motives of those who enacted them.” Reagan Nat'l Adver. of Austin v. City of Austin, 

972 F.3d 696, 707 (5th Cir. 2020) (quoting Reed, 576 U.S. at 167.).

Indeed, this concern that a content-based policy will be enforced in a viewpointmotivated manner appears to be what has happened here. President Rodriguez has 

admitted to developing and applying his Ad Hoc Viewpoint Policy that allows speakers to 

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mention district employees by name so long as they do not criticize the employees. This is 

viewpoint discrimination, which is “a more blatant and egregious form of content 

discrimination.” Reed, 576 U.S. at 168.

These presumptively unconstitutional policies cannot be justified absent a 

compelling governmental interest accomplished through the least restrictive means 

necessary to achieve that interest. Id. at 2226. Neither the Speech Content Policy nor the 

Ad Hoc Viewpoint Policy advance a compelling or even important government interest.

Too often, government suppresses speech when it disagrees with the underlying 

message. Sometimes it suppresses speech just for convenience. McCullen v. Coakley, 134 

S. Ct. 2518, 2534-35 (2014). But requiring a close fit between ends and means prevents 

states from “sacrific[ing] speech for efficiency.” Riley v. National Federation of Blind, 

487 U.S. 781, 795 (1988). Importantly, the burden of proof rests on the government, not 

the speaker, to demonstrate that a challenged law is narrowly tailored. Casey v. City of 

Newport, 308 F.3d 106, 111 (1st Cir. 2002). The Defendants cannot meet such a burden 

in this case.

The GCISD Speech Content Policy and President Rodriguez’s Ad Hoc Viewpoint 

Policy both fail the test of strict scrutiny—they silence speech, they do not serve any 

compelling interest, and they are not narrowly tailored. Accordingly, Mr. Ryan can expect 

to prevail on the merits of his claims.

Immediate Irreparable Harm

If the Court finds the policies violate Mr. Ryan’s First Amendment rights, then the 

question of immediate, irreparable harm is a simple one. A long and unbroken line of cases 

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have established that “[t]he loss of First Amendment freedoms, for even minimal periods 

of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 

(1976). When First Amendment rights are burdened, there is a presumption of irreparable 

harm. Cmty. Communications v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981).

Mr. Ryan has already been harmed once when he was silenced at GCISD’s August 

meeting. If the Speech Content Policy and Ad Hoc Viewpoint Policy are allowed to remain 

in effect at GCISD’s future meetings, Mr. Ryan can expect to be further silenced from 

voicing his criticisms of district employees, including Principal Whitfield.

Remaining Elements for Temporary Injunctive Relief

Defendants will not suffer undue hardship or loss as a result of a Temporary 

Restraining Order because there is no exigent or immediate need for Defendants to 

prohibit Mr. Ryan from mentioning the names of district employees during his comments 

during the open public forum portion of GCISD’s meetings. Defendants will not be 

harmed by an injunction that stops them from “violat[ing] . . . First Amendment rights”—

something they have no right to do. Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 

(7th Cir. 2006). This should be balanced against the immediate, irreparable violation of 

Mr. Ryan’s rights if the Court refuses to enjoin the Defendants.

Issuance of a Temporary Restraining Order would also not adversely affect the 

public interest, but rather is in the public’s interest. “Even minimal First Amendment 

violations constitute[] irreparable injury . . . and preventing them is always in the public 

interest.” Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 

2013). The end result of speech prohibitions is that the “stock of information from which 

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members of the public may draw” is limited. First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 783 (1978).

Because this lawsuit is brought to vindicate Mr. Ryan’s First and Fourteenth 

Amendment rights, and because there are no conceivable damages that could result to the 

Defendants from the issuance of a temporary restraining order or preliminary injunction, 

Mr. Ryan requests that any bond requirement be waived or that the bond requirement be 

otherwise set at zero or some other nominal amount. See Continuum Co. v. Incepts, Inc., 

873 F.2d 801, 803 (5th Cir. 1989) (recognizing that “some courts have waived the 

security requirement when they have found that the plaintiff was . . . very likely to 

succeed on the merits.”).

Conclusion

The Court should grant the motion for a temporary restraining order prior to the 

GCISD’s next board meeting, scheduled on September 27, 2021 at 7:00pm and upon a

hearing a preliminary injunction pending trial prohibiting the enforcement of GCISD’s 

Speech Content Policy of prohibiting comments that mention the names of district 

employees or that contain “attacks of a personal nature” and of President Rodriguez’s Ad 

Hoc Viewpoint Policy prohibiting comments that criticize or complain of a district 

employee by name or title. The Court should additionally grant any and all further relief 

to which Plaintiff may be justly entitled.

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Respectfully submitted,

THE LAW OFFICES OF TONY MCDONALD

By: /s/ Tony McDonald 

Tony McDonald

State Bar No. 24083477

tony@tonymcdonald.com

1501 Leander Dr., Ste. B2

Leander, TX 78641

(512) 200-3608 (Tel)

(815) 550-1292 (Fax)

Counsel for Plaintiff

Dated September 21, 2021

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