Bode, et al v. Kenner City, et al

Filing 42

ORDER: IT IS HEREBY ORDERED that Plaintiffs' 4 Motion for Preliminary Injunction is GRANTED and that Defendants and their agents are enjoined from enforcing Kenner City Charter Article I, Section 1.06 until there is a final judgment in this case. Signed by Judge Nannette Jolivette Brown on 7/26/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE BODE, et al.

CIVIL ACTION

VERSUS

CASE NO. 17-5483

KENNER CITY, et al.

SECTION: “G” (5)
ORDER

In this litigation, Plaintiffs, who are twelve “unclassified civil service” public employees
of the City of Kenner, Louisiana,1 seek declaratory relief and an injunction barring the City of
Kenner (“the City”), Mayor Ben Zahn in his official capacity (“Mayor Zahn”), and Chief of Police
Michael Glaser in his official capacity (“Chief Glaser”) from enforcing Kenner City Charter
Article I, Section 1.06 (hereinafter, the “Charter Amendment”).2 Plaintiffs allege that the Charter
Amendment, which provides that non-elected City employees “shall not participate in any political
activity on behalf of any city candidate in the City of Kenner elections,” violates their First
Amendment rights to engage in political speech, is unconstitutionally vague, and is overbroad.3 In
the alternative, Plaintiffs allege that the Charter Amendment violates the Louisiana Constitution
and Louisiana state law.4 The City responds that the Charter Amendment is narrowly tailored to

Rec. Doc. 1 at 3–4. In particular, Plaintiffs are: (1) George Bode, the City of Kenner’s Assistant Director
of Inspections and Code Enforcement; (2) Adam Campo, the City of Kenner’s Clerk of Court; (3) Gerald Dillenkoffer,
an employee of the City of Kenner’s Public Works Department; (4) Wendi Folse, the City of Kenner’s Director of
Personnel; (5) Mary-Sharon Howland, the Assistant to the Mayor, Defendant Ben Zahn; (6) Kenneth Marroccoli, the
City of Kenner’s Director of Parks and Recreation; (7) Theresa Nevels, the City of Kenner’s Director of Purchasing;
(8) Stephen Petit, Jr., an Assistant City Attorney and Kenner City Prosecutor; (9) Johnie Sullivan, an employee of the
City of Kenner’s Recreation Department; (10) Ronald Vitellaro, the City of Kenner’s Director of Fleet Management;
(11) Richard Walther, the City of Kenner’s Director of Inspections and Code Enforcement; and (12) Mike Wetzel, the
City of Kenner’s Director of Finance. Id.
1

2

Id. at 1–2.

3

Id. at 2.

4

Id.

1

achieve the City’s compelling interest in maintaining an apolitical workforce.5 Pending before the
Court is Plaintiffs’ “Motion for Preliminary Injunction.”6 Having reviewed Plaintiffs’ motion, the
memoranda in support and in opposition and attached exhibits, the evidence presented at the
hearing on the preliminary injunction, and the applicable law, for the reasons that follow, the Court
will grant Plaintiffs’ motion for a preliminary injunction and enjoin Defendants and their agents
from enforcing Kenner City Charter Article I, Section 1.06 until there is a final judgment in this
case, because prohibiting “any political activity” in any City election, by its plain language,
provides no room for protected political expression. Therefore, and for the reasons that follow,
Plaintiffs have established that they have a substantial likelihood of success on the merits of their
claims, there is a substantial threat that failure to grant the injunction will result in irreparable
injury to Plaintiffs, the threatened injury outweighs any damage that the injunction will cause to
Defendants, and an injunction will not disserve the public interest.7
I. Background
A.

Factual Background 8
Plaintiffs are twelve “unclassified civil servants” employed by the City of Kenner, an

instrumentality of the state of Louisiana.9 In particular, Plaintiffs are political appointees who

5

Rec. Doc. 15.

6

Rec. Doc. 4.

7

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).

8

The facts of this case are largely undisputed, as the parties filed joint stipulations of fact into the record and
did not call witnesses to testify at the preliminary injunction hearing. See Rec. Doc. 18. The following facts, based on
the evidence attached to Plaintiffs’ and Defendants’ memoranda and admitted at the evidentiary hearing, as well as
the parties’ joint stipulations of facts, constitute the Court’s “findings of fact” for purposes of Federal Rule of Civil
Procedure 52(a). These findings of fact are not binding on the Court at a trial on the merits. Dennis Melancon, Inc. v.
City of New Orleans, 703 F.3d 262, 268 (5th Cir. 2012).
9

Rec. Doc. 4-1 at 1–2; Rec. Doc. 18 at 2; see also Rec. Doc. 1 at 3–4.

2

“serve at the pleasure of the Mayor” in various municipal positions, such as the Assistant to the
Mayor, the City Prosecutor, and the Clerk of Court.10 “Classified” civil servants in the City of
Kenner receive certain employment protections under the Civil Service System.11 By contrast,
“unclassified” civil servants are employed at will by the Mayor.12 Thus, newly-elected Mayors
may appoint new individuals to fill those “unclassified” positions and replace the individuals
selected by the previous administration.13
On June 7, 2012, the Kenner City Council approved Resolution No. B-16261, which called
an election to amend the Kenner City Charter to include the instant Charter Amendment.14 The
Charter Amendment, titled “Apolitical Workforce,” provides: “Section 1.06. The nonelected
employees in the employment of the City of Kenner shall not participate in any political activity
on behalf of any city candidate in City of Kenner elections.”15 Nonelected employees include both
classified and unclassified employees.16 The term “political activity” is not defined in the Charter
Amendment.17 On November 6, 2012, 70% of the participating voters of the City of Kenner voted
in favor of adopting the Charter Amendment and 30% voted against it.18 Prior to the enactment of
the Charter Amendment, the Kenner City Mayor had vetoed an ordinance in October 2011 seeking

10

Rec. Doc. 18 at 2; see Rec. Doc. 4-1 at 2; Rec. Doc. 1 at 3–4.

11

Rec. Doc. 4-1 at 4, 14; see also Rec. Doc. 18 at 2; Rec. Doc. 1 at 5–6, 15–16.

12

See Rec. Doc. 4-5 at 2; see also Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

13

See Rec. Doc. 4-5 at 2; Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

14

Rec. Doc. 18 at 3.

15

Id.; see Rec. Doc. 1-1.

16

Rec. Doc. 1-1.

17

Rec. Doc. 18 at 3.

18

Id.

3

to prohibit unclassified employees of the City of Kenner from engaging in any political activity,
and a similar attempt to limit City employees’ political activity also failed in 1999.19
Prior to the enactment of the Charter Amendment, unclassified City employees were
already prohibited from engaging in political activity during regular employment hours pursuant
to Section 2-90 of the Kenner Code of Ordinances.20 Section 2-90 directly defined the term
“political activities” “[f]or purposes of this section.” 21 Classified City employees were subject to
the specific prohibitions on political activity established by the City’s Civil Service System in
Section 8.04(B) of the Kenner City Charter as well.22 Section 8.04(B) defined “political activity”

19

Id. at 4. See Rec. Doc. 1 at 9.

20

Rec. Doc. 4-3. Section 2-90 of the Kenner Code of Ordinances provides in full:

No elected official, director, supervisor, or other employee of the City of Kenner shall hire,
fire, promote, refuse to promote, or take any other job action against any City of Kenner employee
or job applicant because of that employee's participation, or refusal to participate, in any election or
other political activities.
No elected official, director, supervisor, or other employee of the City of Kenner shall coerce
or threaten any employee with any job action because of that employee’s participation, or refusal to
participate, in any election or other political activities.
(a) For purposes of this section, political activities include, but are not limited to, support
or nonsupport of any candidate for public office, fundraising activities, support or
nonsupport, of any referendum or millage or similar proposition, or participation in
the activities of any political party.
(b) Provided, however, that no employee is allowed to engage in political activity while
performing their job duties for the City of Kenner during regular employment hours.
21

id.

22

See Rec. Doc. 31. In particular, Section 8.04(B) provides:

B. Party Membership; Elections. No member of the Kenner City Civil Service Board, or
employee covered under this Section shall participate or engage in political activity; be a candidate
for nomination or election to public office or be a member of any national, state, or local committee
of a political party or faction; make or solicit contributions for a political party, faction or candidate;
or take active part in the management of the affairs of a political party, faction, candidate or any
political campaign, except to exercise his right as a citizen to express his opinion privately, to serve
as a commissioner or official watcher at the polls, and to cast his vote as he desires.
(1) Contributions. No person shall solicit contributions for political purposes from any
classified employee or use or attempt to use his position in City service to punish or coerce the

4

“[a]s used in the Part” and lists certain political activities that classified City employees could and
could not do under that prior ban.23
As stated in the parties’ joint stipulations, although Plaintiffs have “no desire” to engage in
political activity during work hours, Plaintiffs “have a genuine desire to express themselves on
political issues while outside of work hours, and would like to participate in these elections while
‘off the clock.’”24 After the adoption of the Charter Amendment, Plaintiffs were prohibited from
supporting local candidates in the 2016 Kenner City mayoral and City Council special election.25
Plaintiffs will also be prevented by the Charter Amendment from supporting City candidates in
the upcoming 2018 Kenner City elections.26 Plaintiffs have expressed that they do not know which
activities are prohibited by the Charter Amendment’s restrictions on engaging in “political
activity” and which activities are not.27
The City of Kenner will hold its next primary election for Mayor, Police Chief, and City
Council on March 24, 2018, with the general election set for April 28, 2018.28 Qualifying for that

political action of a classified employee.
(2) Political Activity Defined. As used in the Part, “political activity” means an effort to
support or oppose the election of a candidate for political office or to support a particular political
party in an election.
23

Id. at 61.

24

Rec. Doc. 18 at 2.

25

See Rec. Doc. 4-4 at 2; Rec. Doc. 4-5 at 2; Rec. Doc. 4-6 at 2.

26

See Rec. Doc. 4-4 at 2; Rec. Doc. 4-5 at 2; Rec. Doc. 4-6 at 2.

See Rec. Doc. 4-4 at 1–2 (Plaintiff concurring with the facts alleged in the Plaintiffs’ complaint and stating
that the Charter Amendment fails to give him notice as to what activity is prohibited); Rec. Doc. 4-5 at 1–2 (same);
Rec. Doc. 4-6 at 1–2 (same); see also Rec. Doc. 1 at 8, 10 (Plaintiffs alleging that they are fearful of retribution for
violating the Charter Amendment and are unclear on what the Charter Amendment prohibits).
27

28

Rec. Doc. 18 at 2.

5

election begins January 3, 2018.29 To date, there are no known cases where the Charter
Amendment’s prohibitions have resulted in any adverse employment action in the City of
Kenner.30
B.

Procedural History
Plaintiffs filed a complaint in this matter on June 1, 2017.31 On June 20, 2017, Plaintiffs

filed the instant motion for a preliminary injunction.32 On June 27, 2017, Defendant City of Kenner
filed an opposition.33 On June 29, 2017, with leave of Court, the City filed an amended
opposition.34 On June 30, 2017, with leave of Court, Plaintiffs filed a reply.35 On June 27, 2017,
Defendants Ben Zahn, the Mayor of the City of Kenner, and Michael Glaser, the Chief of Police,
each filed a limited opposition to the motion for preliminary injunction and a motion to dismiss.36
On June 30, 2017, Plaintiffs and Defendants filed witness and exhibits lists for the hearing
on the motion for a preliminary injunction set for July 5, 2017.37 On June 30, 2017, the parties
filed joint factual and evidentiary stipulations for the July 5, 2017 preliminary injunction hearing,38
and Defendant filed objections to several exhibits identified in Plaintiffs’ exhibit list.39

29

Id.

30

Id. at 4.

31

Rec. Doc. 1.

32

Rec. Doc. 4.

33

Rec. Doc. 15.

34

Rec. Doc. 18.

35

Rec. Doc. 27.

36

Rec. Docs. 11, 12, 13, 14.

37

Rec. Docs. 21, 22, 23.

38

Rec. Doc. 18.

39

Rec. Doc. 24. In particular, Defendants object on relevancy grounds to the introduction of the following

6

II. Parties’ Arguments
A.

Plaintiffs’ Motion for a Preliminary Injunction
In their motion, Plaintiffs seek a preliminary injunction against the enforcement of Kenner

City Charter Article I, Section 1.06 by Defendants and its agents.40 Plaintiffs point out that they
are “unclassified” political appointees who do not enjoy the same employment protections that
classified City employees receive.41 Plaintiffs state that they are appointed by the City of Kenner’s
Mayor and can be fired by him or her at any time, and that when a new Mayor is elected, that
Mayor brings his or her own appointees to fill Plaintiffs’ positions.42
Plaintiffs argue that a preliminary injunction is proper because they have demonstrated that
all four factors required for injunctive relief are met.43

exhibits listed in Plaintiffs’ exhibit list: (1) Plaintiffs’ exhibit 4, i.e. a vetoed copy of the October 26, 2011 Kenner
City Ordinance that purportedly sought to limit the political activities of classified civil servants; (2) Plaintiffs’ exhibit
5, i.e. the Louisiana Attorney General’s Opinion No. 11-256, in which the Attorney General allegedly concluded that
the Kenner City Council did not have the power to pass the 2011 Kenner City Ordinance; (3) Plaintiffs’ exhibit 6, i.e.
a 1999 draft Kenner City Ordinance purportedly attempting to enact similar restrictions and an opinion by the Kenner
City Attorney concluding in part that it was unconstitutional; (4) Plaintiffs’ exhibit 7, i.e. the United States Office of
Special Counsel’s advisory publication regarding permissible political activity under the Hatch Act for “Less
Restricted” and “Further Restricted Employees;” and (5) Plaintiffs’ exhibits 8 and 9, i.e. the general reservation in
Plaintiffs’ exhibit list to introduce “any document” necessary to impeach a witness or rebut other documents. Rec.
Doc. 24 at 1–2; see Rec. Docs. 1-3, 1-4, 1-5, 21, 27-2. The Court need not address Defendants’ first three objections
to Plaintiffs’ exhibits 5, 6, and 7, i.e. the exhibits regarding past attempts by the City of Kenner to restrict the political
activities of classified civil servants, as the Court does not rely on this evidence in considering Plaintiffs’ motion for
a preliminary injunction. Moreover, the Court need not address Defendants’ general objection to Plaintiffs’ exhibits 8
and 9, i.e. Plaintiffs’ reservation of the right to introduce impeachment or rebuttal evidence, as Plaintiffs did not
introduce any such evidence at the preliminary injunction hearing. However, as explained infra, the Court overrules
Defendants’ objection to Plaintiffs’ exhibit 7, as the Court finds that the restrictions imposed by the Hatch Act are
relevant to arguments made by both parties comparing the Charter Amendment to the Hatch Act.
40

Rec. Doc. 4-1 at 3.

41

Id. at 2.

42

Id. at 4.

43
Id. at 5. In particular, Plaintiffs contend that they are entitled to injunctive relief because they can
demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) the
threatened injury outweighs any harm that will result if the injunction is granted; and (4) that the injunction will not
disserve the public interest.

7

1.

Substantial Likelihood of Success

Plaintiffs assert that they can show a substantial likelihood of success on their claims that
the Charter Amendment is: (1) a regulation on political speech that cannot survive strict scrutiny;
(2) unconstitutionally vague; (3) overbroad; (4) a prior restraint; and, in the alternative, (5) a
violation of Louisiana law.44
i.

Regulation on political speech

First, Plaintiffs argue that the Charter Amendment discriminates based on the content of
the speech, i.e. political speech, and therefore must survive strict scrutiny, i.e. that a compelling
government interest exists and that the least restrictive means was used to serve that interest.45
Plaintiffs assert that the Charter Amendment fails both prongs of the strict scrutiny test.46
a.

Compelling interest

Plaintiffs contend that there is no compelling government interest for the Charter
Amendment’s expansive regulations of unclassified City employees’ political speech outside work
hours.47 For example, Plaintiffs assert that there is no compelling interest to prevent Plaintiffs from
placing bumper stickers on a vehicle, putting up yard signs on their personal property, or telling
their friends that they are voting for a certain candidate.48

44

Id. at 6–13.

45

Id. at 6–7.

46

Id.

47

Id. at 7.

48

Id.

8

b.

Narrowly tailored

Additionally, Plaintiffs argue that the Charter Amendment is not narrowly tailored to suit
any possible compelling interest.49 Plaintiffs point out that the Charter Amendment attempts to
ban all political expression related to City of Kenner elections in any amount, group, hour, or
place.50 Plaintiffs assert that it is “obvious” that there are many less restrictive measures to
accomplish possible goals such as free and fair elections.51 For example, Plaintiffs aver that the
City could simply enforce Section 2-90 of the Code of Ordinances, which already prohibits public
employees from engaging in political activity during work hours.52 Plaintiffs also contend that the
City could enact less restrictive measures such as those utilized by the federal Hatch Act, e.g.,
prohibiting employees from specific actions such as appearing on a host list for fundraisers or from
participating in the management of political campaigns.53 According to Plaintiffs, the federal
Hatch Act allows employees to donate and canvass for candidates, whereas the Charter
Amendment does not.54 Plaintiffs argue that a complete ban on all “political activity” in City
elections cannot be narrowly tailored, as it leaves no other outlet for political expression.55
Plaintiffs represent that in Wachsman v. City of Dallas, the Fifth Circuit upheld a Dallas
statute that prohibited civil service employees from engaging in political activity, but only after
the city affirmatively interpreted the statute to not prohibit endorsements of candidates to groups

49

Id. at 8.

50

Id.

51

Id.

52

Id.

53

Id.

54

Id. at 8–9.

55

Id. at 10.

9

of fifteen or fewer people, placing yard signs or bumper stickers on their property, or political
activity by spouses of the employees.56 Plaintiffs assert that the Fifth Circuit in Wachsman opined
that Dallas’s policy “leaves unregulated a considerable scope of city employee political activity.”57
ii.

Unconstitutionally vague

Second, Plaintiffs argue that the Charter Amendment is void for vagueness, as its
prohibitions are not clearly defined and people of common intelligence would differ as to its
application and meaning.58 Plaintiffs aver that the Charter Amendment does not define what the
term “political activity” covers or when “city elections” begin. 59 Plaintiffs assert that the statute
does not provide “fair notice” as to what it prohibits and thus has a capacity to chill constitutionally
protected conduct.60 Plaintiffs argue that the “unfettered discretion” given to Defendants to apply
the Charter Amendment also creates a “danger of arbitrary and discriminatory enforcement.”61
For example, Plaintiffs point out that Plaintiff Petit has a window sticker on his vehicle
supporting current-Kenner City Councilman Dominick Impastato’s bid for a seat on the Jefferson
Parish Council.62 Plaintiffs aver that while this sticker does not outwardly appear to violate the
prohibition on “political activity” in “city elections,” it raises the question of whether and when
Petit would be in violation of the Charter Amendment if Dominick Impastato instead seeks to be

56

Id. at 9 (citing Wachsman v. City of Dallas, 704 F.2d 160, 163 n.3 (5th Cir. 1983)).

57

Id. (citing Wachsman, 704 F.2d at 175).

58

Id. at 10 (quoting Shamloo v. Mississippi State Bd. Of Trustees of Institutions of Higher Learning, 620 F.2d
516, 523 (5th Cir. 1980)).
59

Id.

60

Id. at 10–11.

61

Id. at 11.

62

Id. (citing Rec. Doc. 4-4 at 2).

10

re-elected as a councilmember in the City of Kenner.63 Likewise, Plaintiffs contend that Plaintiff
Howland is an officer and board member of two local business and civic organizations.64 However,
Plaintiffs argue that if those associations invite mayoral candidates to speak, it is unclear if the
Charter Amendment prohibits Howland from attending the event or clapping during the speech.65
Additionally, Plaintiffs argue that the Charter Amendment is vague as to whether it applies to more
attenuated political activity, such as whether an employee’s family members can place bumper
stickers on family cars, or whether the employee can support petition drives or recalls.66
iii.

Overbroad

Third, Plaintiffs contend that the Charter Amendment is overbroad “both substantively and
as applied,” as it prohibits a substantial amount of protected speech.67 According to Plaintiffs, the
Charter Amendment has no “legitimate sweep,” as Plaintiffs contend there is “no basis” for the
City to enforce content-based regulations on all political activity related to City elections.68
Plaintiffs aver that the employees’ spouses, children, and roommates are chilled from expressing
themselves via yard signs, bumper stickers, and campaign contributions.69

63

Id.

64

Id.

65

Id.

66

Id.

67

Id. at 11–12.

68

Id. at 12.

69

Id.

11

iv.

Prior restraint

Fourth, Plaintiffs argue that the Charter Amendment is a “prior restraint” in that it expressly
prohibits all political activity.70 Plaintiffs aver that prior restraints, such as permitting requirements
for political marches, cannot be based on the content of the message conveyed.71 Plaintiffs contend
that because the Charter Amendment is a content-based prior restraint, it is unconstitutional.72
v.

Louisiana law

Fifth, in the alternative to Plaintiffs’ arguments under the United States Constitution,
Plaintiffs assert that the Charter Amendment is invalid because it violates the Louisiana
Constitution and Louisiana law.73 According to Plaintiffs, Article I, Section 7 of the Louisiana
Constitution states that “no law shall curtail or restrain freedom of speech or of the press,” and
Article I, Section 9 ensures the “right of any person to assemble peaceably or to petition
government for a redress of grievances.”74 Likewise, Plaintiffs contend that Article X of the
Louisiana Constitution establishes a civil service system and directly prohibits classified civil
servants from engaging in political activity in exchange for providing them with employment
protections.75 However, Plaintiffs argue that the civil service system established by the Louisiana
Constitution was intended to allow unclassified employees to engage in political activity.76

70

Id. at 13.

71

Id.

72

Id.

73

Id.; Rec. Doc. 1 at 15–16.

74

Rec. Doc. 4-1 at 13.

75

Id. at 14.

76

Id.

12

Additionally, Plaintiffs point out that in 1999, the City Attorney for Kenner published an
opinion finding that a similar ordinance was “flawed” and unconstitutional in light of the Louisiana
Constitution’s established civil service system.77 According to Plaintiffs, the City Attorney also
noted that the 1999 ordinance violated Louisiana Revised Statute § 23:961, which prohibits
imposing political restrictions on employees.78
2.

Irreparable Harm

Next, Plaintiffs contend that they will suffer irreparable harm if the preliminary injunction
is not granted, as Plaintiffs aver that the Supreme Court has determined that the loss of their First
Amendment freedoms “for even minimal periods of time” constitutes irreparable injury.79
Accordingly, Plaintiffs argue there is “no question” that the irreparable harm prong is met.80
3.

Injury Outweighs the Harm

Plaintiffs further assert that the potential for injury to Plaintiffs’ rights if injunctive relief
is not granted “far outweighs” any harm if a preliminary injunction is granted.81 Plaintiffs aver that
the City has no interest in enforcing an unconstitutional law that deprives Plaintiffs of their First
Amendment rights.82 Plaintiffs also point out that the Charter Amendment was only passed in
2012, and the City of Kenner “survived from 1855 to 2012” without it.83

77

Id. at 3.

78

Id.

79

Id. (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976); Deerfield Med. Ctr. v. City of Deerfield Beach, 661
F.2d 328, 338 (5th Cir. 1981)).
80

Id.

81

Id. at 15.

82

Id. (quoting Deerfield Med. Ctr., 661 F.2d at 338; Lionhart v. Foster, 100 F. Supp. 2d 383, 392 (E.D. La.

83

Id.

1999)).

13

4.

Public Interest

Finally, Plaintiffs argue that granting a preliminary injunction here will serve, rather than
hurt, the public interest, as it will protect Louisiana citizens’ rights to freedom of speech and
provide Plaintiffs with the basic protections of due process before conclusively restricting their
rights to engage in political activity.84
B.

Defendant Mayor Zahn’s Response to the Motion for Preliminary Injunction
In response, Defendant Mayor Ben Zahn points out that Plaintiffs have brought this action

against him in his official capacity, which is “simply another way of alleging municipal liability.”85
Accordingly, Mayor Zahn argues that, because Plaintiffs have also asserted their claims against
the City of Kenner, he has filed a separate motion to dismiss.86 Mayor Zahn “takes no position”
on the Charter Amendment’s constitutionality, as he states that he respects both the will of the
City’s citizens in wanting an apolitical city workforce and the rights of the City’s employees. 87
C.

Defendant Chief Glaser’s Response to the Motion for Preliminary Injunction
In response, Defendant Chief Michael Glaser asserts that he has filed a motion to dismiss

the claims against him in his official capacity, as the Chief of Police does not have the authority to
enforce the Charter Amendment.88 Rather, Chief Glaser contends that the remedy for violating the
Charter Amendment is suspension or termination of employment, instead of any criminal

84

Id.

85

Rec. Doc. 13 at 1 (citing Brandon v. Holt, 469 U.S. 464, 469 (1985); Howell v. Town of Ball, 2012 WL
3962387, *4 (W.D. La. 2012)).
86

Id. at 2 (citations omitted).

87

Id. at 2–3.

88

Rec. Doc. 14 at 1.

14

penalties, and Plaintiffs are not employees of the Department of Police. 89 Chief Glaser further
states that he “takes no position” regarding the constitutionality of the Charter Amendment, and
he also respects both the will of the City of Kenner’s citizens in passing the Charter Amendment
and the rights of the City’s employees to engage in free speech.90
D.

The City’s Arguments in Opposition to the Motion for a Preliminary Injunction
In opposition, the City of Kenner argues that Plaintiffs’ motion for a preliminary injunction

should be denied.91 First, the City contends that the Louisiana Department of Justice’s opinion on
a prior ordinance, which was similar to the Charter Amendment, only provided that the Kenner
City Council lacked the authority to pass such an ordinance.92 Here, however, the City asserts that
the provision at issue is a Charter amendment, and not an ordinance.93
Likewise, the City points out that Article X of the Louisiana Constitution makes clear that
the state civil service system referenced by Plaintiffs only applies to cities with a population of
over 400,000, whereas the City of Kenner has a population of about 67,000.94 Thus, the City argues
that Article X, Section 15 applies here, which provides that nothing in Article X prevents
municipalities with population of less than 400,000 from establishing their own municipal civil
service system.95 Additionally, the City avers that the Charter Amendment will not be enforced

89

Id.

90

Id. at 1–2.

91

Rec. Doc. 15 at 1.

92

Id. at 2.

93

Id.

94

Id.

95

Id.

15

against non-city employees who live in a residence with a City employee, as the plain language of
the Charter Amendment applies only to the City’s employees.96
Next, the City argues that Plaintiffs’ motion should be denied, as they have not shown that
they satisfy each of the four requirements for a preliminary injunction.97
1.

Substantial Likelihood of Success

First, the City asserts that there is no likelihood that Plaintiffs will prevail on the merits, as
Plaintiffs ignore the “extensive and indisputable Supreme Court and Fifth Circuit case law”
upholding laws restricting public employees’ political activities as constitutional. 98 For example,
the City represents that the Supreme Court has upheld a state statute that prohibits public
employees from engaging in any political activity other than privately expressing their opinions or
voting.99 Likewise, the City avers that the Supreme Court has determined that it is not
unconstitutional to prevent federal employees from holding a party office, actively participating in
fundraising, becoming a partisan candidate, actively managing a campaign, circulating partisan
nominating petitions, or serving as a delegate at a party convention.100
Moreover, the City argues that there is a long historical tradition of limiting political
activities of public employees.101 According to the City, the Supreme Court has noted that in 1801
Thomas Jefferson directed the heads of his executive departments to not attempt to influence the

96

Id. at 3.

97

Id.

98

Id. at 5.

99
Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 606 (1973); Phillips v. City of Dallas, 781 F.3d 772, 782
(5th Cir. 2015)).

Id. at 6 (citing United States Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers AFL-CIO, 413 U.S.
548 (1973)).
100

101

Id. at 6.

16

votes of others or take part in electioneering.102 Similarly, the City notes that President Theodore
Roosevelt issued an Executive Order in 1907 to prohibit federal employees from using their
“official authority or influence” to interfere with an election.103 The City avers that Congress
subsequently enacted the Hatch Act, which prohibits any federal employee from using his or her
“official authority or influence for the purpose of interfering with an election or affecting the result
thereof,” or from taking “any active part in political management or in political campaigns.”104
According to the City, the Supreme Court has identified four government interests that
support restricting the political rights of public employees: (1) ensuring public employees
administer the law without political bias or favoritism; (2) avoiding the appearance of political
bias or favoritism; (3) preventing the government work force from being employed in support of
a “powerful, invincible, and perhaps corrupt political machine;” and (4) protecting government
employees from being pressured to engage in political acts to “curry favor with their superiors” or
to advance depending on their political performance.105
Here, the City argues that the Charter Amendment is a valid restriction on political
activities by the City’s employees on behalf of City candidates in City of Kenner elections, which
the City contends is narrowly tailored to fulfill the compelling interest of avoiding the
politicization of its public employees.106 The City avers that the term “political activity” is not

102

Id. (quoting Letter Carriers, 413 U.S. at 556; 10 J. Richardson, Messages and Papers of Presidents, at 98–

99).
103

Id. at 7 (quoting Letter Carriers, 413 U.S. at 556; Twenty-Fourth Annual Report of the Civil Service
Commission, House Doc. No. 600, 60th Cong., 1st Sess., at 104).
104

Id. at 7–8.

105

Id. at 8–9 (citing Letter Carriers, 413 U.S. at 556; Phillips, 781 F.3d at 776–77; Wachsman v. City of
Dallas, 704 F.2d 160, 166–67 (5th Cir. 1983)).
106

Id. at 12.

17

vague, as the Kenner Code of Ordinances § 2-90(a) provides that “political activities include, but
are not limited to, support or nonsupport of any candidate for public office, fundraising activities,
support or nonsupport, of any referendum or millage or similar proposition, or participation in the
activities of any political party.”107 According to the City, the Hatch Act also defines “political
activities” as “an activity directed toward the success or failure of a political party, candidate for
partisan political office, or partisan political group.”108 Similarly, the City asserts that the
Louisiana Constitution defines “political activity” as “an effort to support or oppose the election
of a candidate for political office or to support a particular political party in an election.”109
Additionally, the City contends that the Charter Amendment is narrowly tailored.110 First,
the City avers that the Charter Amendment does not prevent Plaintiffs from supporting candidates
in elections that do not involve a city candidate.111 Thus, the City argues that the Charter
Amendment is narrowly tailored to serve the City of Kenner’s compelling interests in maintaining
the loyalty, efficiency, and nonpartisanship of its employees.112 The City asserts that it is clear that
Plaintiff Petit would not be prohibited from supporting a candidate for Jefferson Parish Council by
the Charter Amendment, as it does not involve a city candidate in a city election.113 Second, the
City argues that the Charter Amendment does not prohibit Plaintiffs from engaging in political
activity on other issues such as “non-partisan charter amendments, bond issues, referendum, or

107

Id. at 13.

108

Id.

109

Id. at 13–14.

110

Id.

111

Id. at 14.

112

Id. at 15.

113

Id. at 16.

18

other ballot measures.”114 By contrast, the City contends that Plaintiffs want to engage in the very
partisan political activity that the Hatch Act and other cities have tried to prevent, e.g., “to keep
the employee from being involved in the politics that elect his boss.”115
2.

Irreparable Harm

Second, the City argues that Plaintiffs have not shown that they will suffer irreparable harm
here.116 The City points out that the next primary for the upcoming city candidate election is
scheduled for March 24, 2018, and the general election is scheduled for April 28, 2018. 117 Thus,
the City contends that there is enough time to adjudicate Plaintiffs’ request for declaratory relief
without a preliminary injunction.118
3.

Injury Outweighs the Harm

According to the City, Plaintiffs face no injury here, because a long line of Supreme Court
and Fifth Circuit case law confirms that the Charter Amendment is constitutional.119 By contrast,
the City argues that the threatened harm to the City if the preliminary injunction is granted is great,
as it has an interest in preventing City employees from taking part in partisan local political
activities and enforcing the will of the voters.120

114

Id. at 14, 16.

115

Id. at 17–18 (quoting Villejo v. City of San Antonio, 485 F. Supp. 2d 777 (W.D. Tex. 2007)).

116

Id. at 18.

Rec. Doc. 29 at 1 (amendment to the City of Kenner’s memorandum in opposition to the motion for
preliminary injunction).
117

118

Id. at 2.

119

Rec. Doc. 15 at 19.

120

Id. at 20.

19

4.

Public Interest

Finally, the City contends that granting the preliminary injunction will disserve the public
interest, as the majority of the participating voters in Kenner approved the Charter Amendment
“based on their vested interest in independent and efficient government employees.”121
E.

Plaintiffs’ Arguments in Further Support of the Motion for a Preliminary Injunction
In reply, Plaintiffs argue that the City is attempting to retroactively narrow the vague term

of “political activity” by citing to definitions not found in the Kenner City Charter.122 Plaintiffs
assert that, unlike the cases cited by the City, the Charter Amendment includes no definitions of
its terms and does not specifically define a list of political activities that are prohibited or permitted,
such as privately expressing an opinion.123 Moreover, Plaintiffs aver that while the City now argues
that it does not seek to enforce the Charter Amendment against non-city employees who live with
Plaintiffs, the Charter Amendment effectively chills those persons’ speech for fear that it could be
attributed to the City employee.124 Plaintiffs further contend that while the next municipal primary
is on March 24, 2018, the qualifying date is January 3, 2018, and a person’s “political activity” in
support of a candidate for an upcoming election does not begin on a set date.125
Plaintiffs argue that there are less restrictive means available in this case, such as the more
narrow means approved of by the Fifth Circuit in Wachsman v. City of Dallas.126 There, Plaintiffs

121

Id.

122

Rec. Doc. 27 at 1–2.

123

Id. at 2, 7–8.

124

Id.

125

Id. at 3.

126

Id. at 4.

20

aver that public employees could endorse candidates in front of groups of fewer than fifteen people,
place campaign yard signs and bumper stickers, and work for candidates. 127 Likewise, Plaintiffs
argue that because the Hatch Act imposes less restrictions on federal employees than the Charter
Amendment and is designed to protect the same compelling interests, it is clear that there are less
restrictive means available to the City.128
F.

Defendants’ Oral Argument in Further Opposition to the Motion for a Preliminary
Injunction
In addition to the arguments made in its memorandum, at the preliminary injunction

hearing the City also pointed out that Section 8.04(B)(2) of the Kenner City Charter states that,
“[a]s used in the Part,” political activity is defined as “an effort to support or oppose the election
of a candidate for political office or to support a particular political party in an election.”129 The
City further argued that a person of ordinary intelligence would understand that “political activity”
meant that the Charter Amendment prohibited “active campaigning.”130 Additionally, the City
asserted that the Charter Amendment does not prevent voting in City elections, participating in
private political conversations with spouses, or informing others who the Plaintiff will be voting
for during a City election, as long as the City employee is not “actively campaigning.”131 Finally,

127

Id. at 5.

128

Id. at 5–6.

129

Prelim. Inj. Tr., July 5, 2017, at 17:5–17:23.

Id. at 30:18–30:23 (the City arguing that “again, if I’m actively campaigning, then, no, you can’t [stand
up and say, ‘I’m voting for Tommy.’]. If I’m not actively campaigning, then I’m not within the definition of ‘political
activity’”); id. at 32:14–32:17 (“I think a person of ordinary understanding can say, ‘I can’t actively campaign for
someone. I can’t actively do it.’”).
130

Id. at 28:9–28:16 (the City representing that, “as an example,” the Charter Amendment allows employees
to cast votes and express their personal opinions to a spouse); Id. at 30:18–30:23 (the City arguing that “again, if I’m
actively campaigning, then, no, you can’t [stand up and say, ‘I’m voting for Tommy.’]. If I’m not actively
campaigning, then I’m not within the definition of ‘political activity’”).
131

21

the City agreed that depriving a City employee of the right to vote “definitely crosses the line,”132
and that the strict scrutiny test should be applied here.133
G.

Plaintiffs’ Oral Argument in Further Support of the Motion for a Preliminary
Injunction
In addition to the arguments made in their memoranda, Plaintiffs contended at the

preliminary injunction hearing that the definition of “political activity” found in Section 8.04(B)(2)
of the Kenner City Charter does not apply to the Charter Amendment.134 In particular, Plaintiffs
pointed out that Section 8.04(B)(2) explicitly states that it only applies to that Part, and thus it does
not apply to the Charter Amendment in Article I, Section 1.06 of the Kenner City Charter.135
Plaintiffs argued that if the City wanted to use that definition for the term “political activity” in the
Charter Amendment, then “they could have very easily added a qualifier [to the Charter
Amendment] that says, ‘As defined in Section 8 of the City Charter.’”136
III. Law and Analysis
A.

Legal Standard on a Motion for a Preliminary Injunction
Federal Rule of Civil Procedure Rule 65 governs injunctions and restraining orders, and

Rule 65(a) sets forth the procedural rules governing the issuance of a preliminary injunction. Under
Rule 65(a)(1), a court may issue a preliminary injunction only on notice to the adverse party. To
prevail on a motion for a preliminary injunction, the plaintiff must establish the following essential

132

Id. at 22:5–22:24.

Id. at 4:12–4:18 (the City confirming that it is “correct” that “there isn’t a dispute that this is an attempt
to regulate political speech and that strict scrutiny applies”).
133

134

Id. at 58:1–58:6.

135

Id.

136

Id.

22

elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure
to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any
damage that the injunction will cause to the adverse party; and (4) the injunction will not do
disservice to the public interest.137 Because such relief is an “extraordinary and drastic remedy,”138
to justify entry of a preliminary injunction, the petitioner must “clearly carr[y] the burden of
persuasion on all four elements.”139 If a plaintiff fails to carry its burden as to any one of these
factors, injunctive relief cannot be granted.140
Whether to grant or to deny a preliminary injunction is within the discretion of the trial
court,141 but “[t]he decision to grant a preliminary injunction is to be treated as the exception rather
than the rule.”142 Regardless of whether the request for injunctive relief is granted or denied,
Federal Rule of Civil Procedure 52(a) requires the Court to “state the findings of fact and
conclusions of law that support its action.”143
B.

Analysis
In their motion, Plaintiffs argue that a preliminary injunction against the enforcement of

the Charter Amendment is proper.144 The Charter Amendment provides that the “nonelected
employees in the employment of the City of Kenner shall not participate in any political activity
137

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).

138

Munaf v. Geren, 553 U.S. 674, 689 (2008).

139

PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005) (internal quotation
marks and citations omitted).
140

See Enterprise Int’l Inc. v. Corp. Estatal Petrolera Ecautoriana, 762 F.2d 464, 472 (5th Cir. 1985).

141

Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984).

142

Miss. Power & Light, 760 F.2d at 621.

143

Fed. R. Civ. P. 52(a)(1), (2).

144

Rec. Doc. 4-1 at 5.

23

on behalf of any city candidate in City of Kenner elections.”145 To prevail on their motion for a
preliminary injunction, Plaintiffs must establish: (1) a substantial likelihood of success on the
merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury;
(3) the threatened injury outweighs any damage that the injunction will cause to the City; and
(4) the injunction will not do disservice to the public interest.146
1.

Substantial Likelihood of Success

Plaintiffs assert that they have a substantial likelihood of success in showing that the
Charter Amendment violates the First and Fourteenth Amendments of the United States
Constitution, as they contend the Charter Amendment is: (1) a regulation on political speech that
cannot survive strict scrutiny; (2) unconstitutionally vague; (3) overbroad; and (4) a prior
restraint.147 Plaintiffs further contend in the alternative that the Charter Amendment violates the
Louisiana Constitution and Louisiana law.148 Because the parties’ arguments on Plaintiffs’ claims
under the First and Fourteenth Amendments are so related, the Court will consider each of
Plaintiffs’ constitutional claims in turn.
i.

Regulation on political speech

First, Plaintiffs argue that the Charter Amendment is a content-based restriction that is
subject to, and fails, strict scrutiny.149 Plaintiffs contend that there is no compelling government
interest for the Charter Amendment’s regulations of the City’s employees’ political speech outside

145

Rec. Doc. 1-1.

146

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).

147

Rec. Doc. 4-1 at 6–13.

148

Id.

149

Id. at 6.

24

work hours and, regardless, the Charter Amendment is not narrowly tailored to suit a compelling
interest.150
a.

Standard of judicial review

The First Amendment, applicable to the States through the Fourteenth Amendment,
prohibits the enactment of laws “abridging the freedom of speech.”151 As a preliminary matter, the
Court must first determine which standard of judicial review to apply.
Plaintiffs and the City agree that the strict scrutiny test should be applied here.152 If strict
scrutiny applies, the City must show that the Charter Amendment is “narrowly tailored” to serve
a “compelling interest.”153 The Supreme Court and the Fifth Circuit have instructed that
regulations on speech that are “content-based,” i.e. where the government targets speech “based
on its communicative content,” is subject to strict scrutiny, whereas regulations that are “contentneutral” must only survive intermediate scrutiny.154 Similarly, the Supreme Court has held that
regulations limiting political expression are subject to strict scrutiny. 155 For example, in Elrod v.

150

Id. at 7.

151

U.S. Const. amend. I.

Prelim. Inj. Tr., July 5, 2017, at 4:12–4:18 (the City confirming that it is “correct” that “there isn’t a
dispute that this is an attempt to regulate political speech and that strict scrutiny applies”); see also Rec. Doc. 4
(Plaintiffs arguing that strict scrutiny applies); Rec. Doc. 15 (the City responding that the Charter Amendment survives
strict scrutiny).
152

153

Reed, 135 S. Ct. at 2228.

154

Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 554 (5th Cir. 2006); see R.A.V. v. St. Paul, 505
U.S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118
(1991); Texas v. Johnson, 491 U.S. 397 (1989).
155
See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345–46 (1995); Meyer v. Grant, 486 U.S. 414,
420 (1988); Buckley v. Valeo, 424 U.S. 1, 45 (1976); see also Republican Party of Minnesota v. White, 536 U.S. 765
(2002) (concluding that the Minnesota Supreme Court’s canon of judicial conduct, which prohibited candidates for
judicial election from announcing their views on legal or political views, did not survive strict scrutiny); Dep’t of
Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 427 (5th Cir. 2014) (holding that strict
scrutiny applied to a facial challenge to a Texas law prohibiting charities from using bingo proceeds for lobbying and
other political speech); Fort v. Civil Serv. Comm’n of Alameda Cty., 61 Cal. 2d 331, 333 (1964) (applying strict
scrutiny to a county charter provision that prohibited public employees from taking part in a political campaign or an

25

Burns, a case involving public employees’ First Amendment rights, the Supreme Court opined that
it is “firmly established that a significant impairment of First Amendment rights must survive
exacting scrutiny.”156
Here, the Charter Amendment bans speech “on the basis of its content and burdens a
category of speech that is ‘at the core of our First Amendment freedoms,’” i.e. political speech.157
The Charter Amendment applies to City employees’ political activities both during and after work
hours, and it imposes a blanket ban on “any political activity on behalf of a city candidate,” without
limitation or exceptions.158 Thus, the Charter Amendment appears to be a content-based regulation
on Plaintiffs’ political speech, i.e. a category of speech that is “at the core of our First Amendment
freedoms,” and a “significant impairment of First Amendment rights” warranting the application
of the strict scrutiny test.159
Although the parties agree that strict scrutiny applies, the Court notes that the Supreme
Court has recognized that government entities “may impose restraints on the job-related speech of
public employees that would be plainly unconstitutional if applied to the public at large.”160 Thus,

election except to vote or privately express an opinion, and cited approvingly by the Fifth Circuit in Hobbs v.
Thompson, 448 F.2d 456 (5th Cir. 1971)).
156

427 U.S. 347, 362 (1976).

157

See Siefert v. Alexander, 608 F.3d 974, 981 (7th Cir. 2010) (quoting White, 536 U.S. at 774) (applying
strict scrutiny to ban on judges affiliating with political parties, endorsing candidates, or soliciting campaign
contributions).
158

Rec. Doc. 1-1.

See Elrod, 427 U.S. at 363 (“In short, if conditioning the retention of public employment on the
employee’s support of the in-party is to survive constitutional challenge, it must further some vital government end
by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained
must outweigh the loss of constitutionally protected rights.”); Siefert, 608 F.3d at 981; see also White, 536 U.S. at 765
(applying strict scrutiny to canon of judicial conduct that prohibits candidates for judicial office from announcing their
views on disputed legal or political issues).
159

160

United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465–66 (1995).

26

there is a body of related, but distinguishable, case law in the Supreme Court and Fifth Circuit
where a public employee’s challenge to his or her termination or to a regulation prohibiting certain
“non-speech” political activity on First Amendment grounds was reviewed by balancing the
interests of the government against the rights of the employee.161 Moreover, in Morial v. Judiciary
Commission, the Fifth Circuit noted that the level of judicial review that is to be applied in cases
involving the First Amendment rights of public employees differs on a case-by-case basis: “As the
burden comes closer to impairing core first amendment values, e.g. the right to hold particular
political views, or impairs some given first amendment value more substantially, the requisite
closeness of fit of means and end increases accordingly.”162
Here, Plaintiffs do not challenge a termination or a limited regulation on “non-speech”
political activity.163 Rather, Plaintiffs challenge the Charter Amendment’s blanket prohibition
against “any political activity on behalf of any city candidate in the City of Kenner elections.”164
Indeed, in Hobbs v. Thompson, the Fifth Circuit concluded that “where the political activities of a
public employee are unrelated to the performance of his duties he is to be treated for purposes of
adjudicating his First Amendment rights as a ‘member of the general public.’” 165 Therefore, in

161

See Phillips v. City of Dallas, 781 F.3d 772, 776 (5th Cir. 2015) (employing the balancing test to consider
a First Amendment challenge by a terminated public employee to Dallas’s restriction on public employees running
for office; Morial v. Judiciary Comm’n, 565 F.2d 295, 300 (5th Cir. 1977) (en banc) (citations omitted) (determining
that when a restriction on public employees’ partisan political activity “contains substantial non-speech elements,” the
challenged regulation is constitutionality permissible “if justified by a reasonable necessity to burden those activities
to achieve a compelling public objective”).
162

Morial, 565 F.2d at 299–300.

163

Id.

164

See Rec. Doc. 1-1.

165

Hobbs v. Thompson, 448 F.2d 456, 475 (5th Cir. 1971) (citing Pickering v. Bd. of Ed. of Twp. High Sch.
Dist. 205, Will Cty., Illinois, 391 U.S. 563, 572 (1968)).

27

light of the fact that the Charter Amendment operates as a “significant impairment” on Plaintiffs’
core speech rights, regardless of the time and place or whether it is job-related, and the parties’
agreement that the Charter Amendment’s content-based prohibition on Plaintiffs’ political speech
is subject to strict scrutiny, the Court will apply the strict scrutiny test here.166
Accordingly, the Court will next consider whether: (1) the City has a “compelling interest”
in enacting restrictions on Plaintiffs’ political speech; and (2) whether the Charter Amendment is
“narrowly tailored” to accomplish that compelling interest, i.e. whether there are less restrictive
means available to the City to achieve its goals.167
b.

Compelling state interest

In their motion, Plaintiffs argue that there is no compelling government interest for the
Charter Amendment’s regulations of City employees’ political speech outside work hours.168 In
opposition, the City asserts that the Supreme Court has noted a number of compelling interests for
limiting the political activities of public employees.169 Here, the City argues that the Charter

166

Even if the Court were to apply the standard used in challenges by public employees to terminations and
“non-speech” regulations and consider whether the Charter Amendment was a “reasonable necessity” to achieve a
“compelling public objective,” for the same reasons stated below, the Court finds that Plaintiffs have nevertheless
shown a substantial likelihood of success on their First Amendment claims. That is, as the Court discusses infra, the
City has not pointed to a sufficient basis to establish that it was a “reasonable necessity” to adopt the Charter
Amendment’s broad prohibitions on Plaintiffs’ political activities with regard to City elections. Nor has the City shown
that the balance between the significant infringement on Plaintiffs’ core First Amendment rights and the City’s
interests would not favor Plaintiffs. While governmental entities can impose restraints on the job-related speech of
public employees, public employees “do not automatically relinquish their rights under the First Amendment by
accepting government employment.” Sanjour v. E.P.A., 56 F.3d 85, 90 (D.C. Cir. 1995).
167

Reed, 135 S. Ct. at 2228.

168

Rec. Doc. 4-1 at 7.

169

Rec. Doc. 15 at 6, 8–9 (citations omitted).

28

Amendment was passed to avoid the politicization of its public employees and to maintain the
loyalty, efficiency, and nonpartisanship of its employees.170
The Supreme Court has concluded that a “narrow class of speech restrictions” based upon
“an interest in allowing governmental entities to perform their functions” does not run afoul of the
First Amendment.171 The Supreme Court has opined that “actively partisan governmental
personnel threatens good administration . . . .”172 Indeed, in United States Civil Service
Commission v. National Association of Letter Carriers, AFL-CIO, the Supreme Court pointed to
a number of interests the government has in restricting certain political activities of its public
employees, such as ensuring that the government operates effectively and fairly, that laws are
executed without political bias or favoritism or the appearance of improper politicization, and that
“public employees themselves are insulated from improper political influences.”173
Based on the foregoing, the Court finds that the City has identified several compelling state
interests that justify certain restrictions on the political activity of its “unclassified” civil servants.
In particular, the Court finds that the City has a compelling interest in ensuring its laws and
programs are executed apolitically and without political bias or favoritism.174 Likewise, the City
has a compelling interest in maintaining the loyalty, efficiency, and nonpartisanship of its public

170

Id. at 12, 15.

See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 341 (2010); see also Asgeirsson v. Abbott,
773 F. Supp. 2d 684, 700–01 (W.D. Tex. 2011), aff’d, 696 F.3d 454 (5th Cir. 2012).
171

172

United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 97 (1947).

173

413 U.S. 548, 564 (1973).

174

Nat'l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. at 564–65.

29

employees and preventing them from “being involved in the politics that elect [their] boss” to
avoid any improper influences.175
While Plaintiffs assert that the City lacks a compelling interest in prohibiting political
activity after work hours, the Court finds such argument unpersuasive. In United Public Workers
v. Mitchell, the Supreme Court rejected the plaintiffs’ argument that political activities in their free
time cannot be regulated, as “[t]he influence of political activity by government employees, if evil
in its effects on the service, the employees or people dealing with them, is hardly less so because
that activity takes place after hours.”176 Thus, the Court finds that the City’s compelling interests
also exist for restricting certain political activities by the City’s employees outside of work hours.
c.

Narrowly tailored

Having determined that compelling interests exist, the Court must now consider whether
the Charter Amendment is narrowly tailored to accomplish those compelling interests, i.e. that
there are no less restrictive means that would be “at least as effective” in achieving the Charter
Amendment’s purpose.177 It is well established that the starting point in interpreting any statute or
law is the text itself.178 In their motion, Plaintiffs argue that the Charter Amendment is expansive,
as it restricts “any political activity” without defining the term “political activity” or providing a

175

Id. at 17–18 (quoting Villejo v. City of San Antonio, 485 F. Supp. 2d 777 (W.D. Tex. 2007)).

176

United Pub. Workers v. Mitchell, 330 U.S. 75, 95 (1947).

177

Serv. Employees Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010).

Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (“If the statutory text is
unambiguous, our inquiry begins and ends with the text.”); M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La.
7/1/08); 998 So. 2d 16, 27 (“The starting point in the interpretation of any statute is the language of the statute itself.”);
see also BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“The preeminent canon of statutory interpretation
requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’”
(citations omitted)).
178

30

clear list of easily identifiable political activities that are and are not prohibited.179 Plaintiffs also
assert that there are a number of less restrictive alternative measures that the City could adopt to
accomplish its compelling interests.180 In opposition, the City argues that the Charter Amendment
is narrowly tailored, as it does not prevent Plaintiffs from becoming politically active in elections
that do not involve City candidates.181 In its opposition memorandum, the City also argues that the
term “political activity” is not vague, and is defined in the Kenner Code of Ordinances,182 the
Louisiana Constitution,183 and the Hatch Act.184 At the preliminary injunction hearing, the City
further pointed out that the Kenner City Charter § 8.04(B)(2) provides that “[a]s used in the Part,
‘political activity’ means an effort to support or oppose the election of a candidate for political
office or to support a particular political party in an election,”185 and that an ordinary person would
know the term “political activity” meant “actively campaigning.”186

179

Rec. Doc. 4-1 at 8; Rec. Doc. 27 at 7–8.

180

Rec. Doc. 4-1 at 8.

181

Rec. Doc. 15 at 14, 16.

182
Id. at 13 (quoting Kenner Code of Ordinances § 2-90(a)). In particular, the City represents that Section 290(a) of the Kenner Code of Ordinances provides that “political activities include, but are not limited to, support or
nonsupport of any candidate for public office, fundraising activities, support or nonsupport, of any referendum or
millage or similar proposition, or participation in the activities of any political party.” Id.
183

Id. at 13–14 (quoting La. Const. art. X, § 9(C)). In particular, the City contends that the Louisiana
Constitution defines “political activity” as “an effort to support or oppose the election of a candidate for political office
or to support a particular political party in an election.” Id.
184

Id. at 13 (quoting 5 C.F.R. § 734.101). In particular, the City represents that the Hatch Act defines
“political activity” as “an activity directed toward the success or failure of a political party, candidate for partisan
political office, or partisan political group.” Id.
185

Prelim. Inj. Tr., July 5, 2017, at 17:5–17:23; see Rec. Doc. 31 at 61.

Id. at 30:18–30:23 (the City arguing that “again, if I’m actively campaigning, then, no, you can’t [stand
up and say, ‘I’m voting for Tommy.’]. If I’m not actively campaigning, then I’m not within the definition of ‘political
activity’”); id. at 32:14–32:17 (“I think a person of ordinary understanding can say, ‘I can’t actively campaign for
someone. I can't actively do it.’”).
186

31

The Court concludes that Plaintiffs have sufficiently shown that the Charter Amendment
is not narrowly tailored to serve the City’s compelling interests, and therefore fails to survive strict
scrutiny. As noted supra, the starting point in interpreting any statute or law is the text itself.187
The Charter Amendment at issue here provides that nonelected City employees such as Plaintiffs
are prohibited from participating in “any political activity on behalf of any city candidate in the
City of Kenner elections.”188 No definition of “political activity” is provided in the Charter
Amendment that might limit the scope of the restricted conduct. Nor does the Charter Amendment
set out a specific list of conduct that is prohibited and not prohibited such that the broad sweep of
covered political expression may be narrowed, unlike the other provisions restricting public
employees’ political activity in the cases cited by the City.189
Such a broad, limitless ban appears to extend to a wide range of political conduct that is
either unrelated to the City’s compelling interests or so attenuated that the City could achieve its
compelling interests by adopting less restrictive means. For example, “any political activity on
behalf of any city candidate in the City of Kenner elections” appears to extend to a private
conversation regarding a Plaintiff’s support or non-support of a city candidate, regardless of where
it occurs or whether it is between a Plaintiff and a single individual, a small group, or a large
audience. Likewise, it appears to also prohibit Plaintiffs from attending informational forums or
private events involving a city candidate, driving another family member’s vehicle with a city

187

Asadi, 720 F.3d at 622; M.J. Farms, Ltd., 998 So. 2d at 27; see also BedRoc Ltd., 541 U.S. at 183.

188

Rec. Doc. 1-1 at 2 (emphasis added).

189

See Wachsman v. City of Dallas, 704 F.2d 160, 175 (5th Cir. 1983); Letter Carriers, 413 U.S. at 556;
Phillips, 781 F.3d at 776–77.

32

candidate’s bumper sticker on it, or posting, liking, or sharing social media posts or general news
articles on social media related to a city candidate in any undefined way or circumstance.
The City argues that the Charter Amendment is narrowly tailored because it is limited to
City elections involving City candidates.190 Thus, according to the City, Plaintiffs are not
prohibited from engaging in political activity during parish, state, or federal elections or from
becoming involved in other public issues, such as non-partisan charter amendments, referendums,
or other ballot measures.191 Although participating in elections other than those involving City
candidates in City elections may be excluded from the ban, it does not remedy the complete ban
on Plaintiffs’ participation in such elections involving the City. This Court knows of no authority,
nor has the City pointed to any, which allows a total ban on political speech directed to a particular
type of election.
The Court notes that, at the preliminary injunction hearing, the City argued that the Charter
Amendment does not prevent voting in City elections, participating in private political
conversations with spouses, or informing others who the Plaintiff will be voting for during a City
election.192 However, the City’s argument is undercut by the text of the Charter Amendment itself,
which offers no such limitations on its extensive reach. Instead, the term “any political activity”
means precisely what it says: all political activity involving City candidates, in any manner or
circumstance, is prohibited. By contrast, the City has not adequately explained how the plain text

190

Rec. Doc. 15 at 14.

191

Id. at 14–17.

See, e.g., Prelim. Inj. Tr., July 5, 2017, at 28:9–28:16 (the City representing that, “as an example,” the
Charter Amendment allows employees to cast votes and express their personal opinions to a spouse).
192

33

of the Charter Amendment can be interpreted such that it does not include the act of voting or
simply stating who one is voting for in a City election.
The Court notes that the City pointed to multiple definitions of the term “political activity”
in its opposition memorandum and during the preliminary injunction hearing to argue that the
Charter Amendment is tailored to the City’s compelling interests.193 However, rather than
demonstrating that the Charter Amendment is narrowly tailored, the City’s shifting stance on what
“political activity” means, and thus what political conduct is covered by the Charter Amendment,
undercuts the City’s argument on the Charter Amendment’s constitutionality. For example, the
City represents in its opposition memorandum that Section 2-90(a) of the Kenner Code of
Ordinances provides that “political activities include, but are not limited to, support or nonsupport
of any candidate for public office, fundraising activities, support or nonsupport of any referendum
or millage or similar proposition, or participation in the activities of any political party.” However,
Section 2-90(a) of the Kenner Code of Ordinances does not identify in what way its non-exhaustive
list is limited such that, if the definition applied, it would be narrowly tailored here.
Moreover, at the preliminary injunction hearing, the City proposed two new and vastly
different definitions of “political activity” that would greatly impact the range of political
expression covered. First, the City pointed to Section 8.04 of the Kenner City Charter, which states
that, “[a]s used in the Part,” political activity is “an effort to support or oppose the election of a
candidate for political office or to support a particular political party in an election.” 194 Second,
the City argued that a person of ordinary intelligence would know that “political activity” meant
the Charter Amendment prohibited “active campaigning” and excluded private conversations with
193

See Rec. Doc. 15 at 13–14.

194

Prelim. Inj. Tr., July 5, 2017, at 17:5–17:23; see Rec. Doc. 31 at 61.

34

spouses and voting in City elections.195 Yet, the City could not explain clearly what “actively”
campaigning meant, or how this definition is derived from the plain text of the Charter
Amendment.
The fundamental flaw with the City’s approach of offering no less than five different
definitions of “political activity” lies in the fact that the Charter Amendment adopts none of them.
The Charter Amendment fails to incorporate by reference any of these definitions or provide its
own definition for what conduct is covered by the term “political activity.” For example, the City
represents that the Kenner City Charter includes its own definition of “political activity;” however,
that definition, contained in Section 8.04(B)(2) of the Kenner City Charter, explicitly states that it
only applies to that Part and the restrictions on “political activity” in Section 8.04(B),196 and the
City has not demonstrated that it applies to the Charter Amendment in Section 1.06 of the Kenner
City Charter. As such, rather than show that there are no less restrictive means available to achieve
the Charter Amendment’s purpose,197 the City’s reliance on multiple definitions of “political
activity” supports the finding that Plaintiffs have a substantial likelihood of showing that less
restrictive means exist. Each definition appears to impose different levels of restrictions on
Plaintiffs’ political expression, and none seem to apply to the Charter Amendment’s limitless ban.

See, e.g., Prelim. Inj. Tr., July 5, 2017, at 30:18–30:23 (the City arguing that “again, if I’m actively
campaigning, then, no, you can’t [stand up and say, ‘I’m voting for Tommy.’]. If I’m not actively campaigning, then
I’m not within the definition of ‘political activity’”); id. at 32:14–32:17 (“I think a person of ordinary understanding
can say, ‘I can’t actively campaign for someone. I can’t actively do it.’”).
195

See Kenner City Charter § 8.04(B)(2) (“As used in the Part, ‘political activity’ means an effort to support
or oppose the election of a candidate for political office or to support a particular political party in an election.”); Rec.
Doc. 31 at 61.
196

197

Serv. Employees Int’l Union, Local 5, 595 F.3d at 596.

35

Finally, the City cites to cases that upheld various restrictions on the political activities of
government employees in support of its contention that the Charter Amendment is
constitutional.198 However, the limitations on public employees’ political expression imposed in
those cases are clearly distinguishable from the Charter Amendment at issue here, as they either:
(1) provide a list of specific political activities that are prohibited, such as running for office,
actively participating in political campaigns, using official positions to influence an election, or
making campaign donations; or (2) include a list of political activity that is explicitly not
prohibited, such as voting in elections or engaging in private political discussions.199 Indeed, in
Wachsman v. City of Dallas, the Fifth Circuit upheld certain restrictions on city employees’
political activity where the ban left “unregulated a considerable scope of city employee political
activity,” and “city employees [were] limited only to an extent that furthers their ability to perform
optimally.”200 The Charter Amendment, by contrast, clearly extends to all political activity,
regardless of its connection to the City’s compelling interests or Plaintiffs’ employment with the
City. Indeed, contrary to the City’s assertion that the Charter Amendment is narrowly tailored, it
appears that there was little tailoring involved in drafting the Charter Amendment’s blanket
prohibition on “any political activity” with regard to City elections.201

198

Rec. Doc. 15 at 6–11.

199

For example, the federal Hatch Act imposes far more limited and specific prohibitions against federal
employees taking “any active part in political management or in political campaigns” or using their “official authority
or influence for the purpose of interfering with or affecting the result of an election.” See Mitchell, 330 U.S. at 94–95;
Nat'l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. at 550. See also Wachsman v. City of Dallas, 704 F.2d 160, 162
(5th Cir. 1983) (upholding more limited restrictions on the political speech of government workers, particularly after
the city had “authoritatively reinterpreted” the provision so that it did not prohibit such conduct as endorsing a
candidate to groups of fifteen or fewer people, placing signs or bumper stickers on personal property, and working in
campaign headquarters).
200

Id. at 174.

See generally Hobbs v. Thompson, 448 F.2d 456, 470–71 (5th Cir. 1971) (holding that “a blanket
prohibition upon political activity, not precisely confined to remedy specific evils, would deal a serious blow to the
201

36

Based on the foregoing, the Court finds that Plaintiffs have a substantial likelihood of
success in showing that the Charter Amendment cannot survive strict scrutiny.202 Plaintiffs have
sufficiently shown that there are less restrictive means available to the City that would “be at least
as effective in achieving” the City’s compelling interests.203 Accordingly, the Court finds that
Plaintiffs have shown that there is a substantial likelihood of success on the merits of their first
claim that the Charter Amendment is a violation of their free speech rights under the First
Amendment, and is therefore unconstitutional.
ii.

Unconstitutionally Vague

Next, Plaintiffs assert that the Charter Amendment is unconstitutionally vague under the
First and Fourteenth Amendments, as the Charter Amendment’s prohibitions are not clearly
defined and people of common intelligence would differ as to its application and meaning.204 In
response, the City asserts that the Charter Amendment is not impermissibly vague, as it clearly
restricts political activities on behalf of City candidates in City of Kenner elections.205 Moreover,
as discussed supra, the City argues that the term “political activity” is not vague, as it is defined

effective functioning of our democracy”).
As noted supra, all parties agree that the Charter Amendment’s blanket prohibition on Plaintiffs’ political
activity with regard to City elections is subject to strict scrutiny. However, the Court additionally finds that, even if a
less close fit between the City’s means and ends was required, e.g., that there was a “reasonable necessity to burden
those activities to achieve a compelling public objective,” Plaintiffs have still shown a substantial likelihood of success
on their First Amendment claims here for the same reasons discussed. Morial, 565 F.2d at 299–300. In other words,
the City has not shown that there was a “reasonable necessity” to prohibit all of Plaintiffs’ political activity on behalf
of City candidates in City elections, without limitation or exception, and that the balance here between the Plaintiffs’
rights to engaged in the prohibited political speech and the City’s interests favors the Plaintiffs. See Letter Carriers,
413 U.S. at 556; Morial, 565 F.2d at 299–300.
202

203

Serv. Employees Int'l Union, Local 5 v. City of Houston, 595 F.3d 588, 596–97 (5th Cir. 2010).

204

Rec. Doc. 4-1 at 10 (quoting Shamloo v. Mississippi State Bd. of Trustees of Institutions of Higher
Learning, 620 F.2d 16 (5th Cir. 1980)).
205

Rec. Doc. 15 at 12.

37

in the Kenner City Charter, Kenner City Code of Ordinances, the Louisiana Constitution, and the
Hatch Act, and that a person of ordinary intelligence would know that the term “political activity”
only applied to “actively campaigning” and would not include casting votes or privately discussing
who one may be voting for.206
A law or policy is void for vagueness if it “either forbids or requires the doing of an act in
terms so vague that people of common intelligence must necessarily guess at its meaning and differ
as to its application.”207 The Fifth Circuit has held that, because the First Amendment needs
“breathing space,” laws regulating speech “must be drawn with some specificity.” 208 The
government must ensure prohibitions are “clearly defined” and should “articulate its aims with a
reasonable degree of clarity.”209 While a law may be written to be flexible, it must provide “fair
notice” so that “its prohibitions may be avoided by those who wish to do so.”210 According to the
Fifth Circuit, the purpose of the vagueness doctrine is to prevent the government “from chilling
substantial amounts of speech and facilitating discriminatory and arbitrary enforcement.” 211 That
is, the vagueness doctrine addresses laws where citizens cannot predict which actions are
prohibited and where “discriminatory and arbitrary enforcement” is possible.212 Thus, to succeed

206

Id. at 13–14. See Prelim. Inj. Tr., July 5, 2017, at 30:18–30:23, 32:14–32:17.

207

Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926); see also Roberts v. U.S. Jaycees, 468 U.S. 609,
629 (1984) (applying the same test); Allen v. Bartholomew Cty. Court Servs. Dep’t, 185 F. Supp. 3d 1075, 1080–81
(S.D. Ind. 2016) (applying the same void for vagueness test in a First Amendment challenge to a policy prohibiting
court employees from engaging in political activity).
208
Serv. Employees Int'l Union, Local 5, 595 F.3d at 596 (citing Howard Gault Co. v. Tex. Rural Legal Aid,
Inc., 848 F.2d 544, 559 (5th Cir. 1988)).
209

Roberts, 468 U.S. at 629; Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

210

Id. at 596–97 (citing Grayned v. City of Rockford, 408 U.S. 104, 110–12 (1972)).

211

Asgeirsson v. Abbott, 696 F.3d 454, 466 (5th Cir. 2012).

212

Id.

38

on their vagueness challenge, Plaintiffs must show that the Charter Amendment: (1) reaches a
substantial amount of constitutionally protected conduct; and (2) “fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or
“authorizes or even encourages arbitrary and discriminatory enforcement.”213
In Hobbs v. Thompson, the Fifth Circuit held that a provision in a city charter that
prohibited fire department employees from taking an active part in any election, contributing
money to any candidate, or “prominently identifying themselves in a political race with or against
any candidate for office” was unconstitutionally vague.214 The Fifth Circuit noted that it was
unclear where the regulation stopped or if it prohibited displaying bumper stickers, discussing
candidates with friends, or writing letters to newspapers in support of candidates.215 The Fifth
Circuit further concluded that it was “simply inconceivable to us that one acting in good faith under
this regulatory scheme would readily know what conduct was prohibited and what conduct was
permitted,” and therefore the provision would likely chill the plaintiffs’ speech.216
The Charter Amendment plainly reaches a “substantial amount of constitutionally
protected conduct,” e.g., Plaintiffs’ political speech.217 Moreover, as explained supra, the Charter
Amendment fails to define what conduct or speech constitutes “political activity,” rendering it both
unconstitutionally vague and overly broad. Unlike the regulations on public employees’ political

213

Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 761 (5th Cir. 2010); see United States v. Clark, 582
F.3d 607, 612 (5th Cir. 2009).
214

448 F.2d 456, 471 (5th Cir. 1971).

215

Id.

216

Id.

217

See Clark, 582 F.3d at 612; see also Allen, 185 F. Supp. 3d at 1080–81 (finding that a policy prohibiting
all political activity by public employees clearly reaches a “substantial amount of constitutionality protected
conduct”).

39

activities upheld by the Supreme Court and the Fifth Circuit,218 the Charter Amendment does not
“clearly define” its terms or explicitly identify what speech or conduct is allegedly included or
excluded in its broad ban.219 The City’s identification of five different definitions of the term
“political activity” exacerbates rather than remedies the vagueness of the law, as the scope of
prohibited activity under the Charter Amendment appears to vary depending on the particular
definition considered. Moreover, the Charter Amendment does not incorporate any of the City’s
definitions, leaving Plaintiffs to guess which definition may apply and creating a serious risk of
“discriminatory and arbitrary enforcement” depending on the definition adopted by a given
enforcer. 220 If the City itself cannot point to a definitive authority to interpret and define the
boundaries of the Charter Amendment’s intrusions into Plaintiffs’ political speech and activity,
then it appears to also be true that “[people] of common intelligence must necessarily guess at its
meaning.”221
As such, Plaintiffs have sufficiently shown that the Charter Amendment risks chilling
substantial amounts of their protected speech.222 For example, Plaintiffs point out that the Charter
Amendment is vague as to whether a City employee can attend her private civic organization’s
meetings when a mayoral candidate is invited to speak,223 or how a spouses’ private political

218

See Letter Carriers, 413 U.S. at 556; Wachsman v. City of Dallas, 704 F.2d 160, 162 (5th Cir. 1983).

219

Roberts, 468 U.S. at 629; Grayned, 408 U.S. at 108.

220

Asgeirsson, 696 F.3d at 466.

221

Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926).

222

See, e.g., Rec. Doc. 4-1 at 11 (Plaintiff Mary-Sharon Howland, who is an officer in several private civic
organizations, asserting that it is unclear what the Charter Amendment would prohibit her from doing if a mayoral
candidate attended or spoke at one of those organizations’ meetings, e.g., it is unclear if she would be precluded from
attending the meeting with mayoral candidates or clapping during a candidate’s speech).
223

See Rec. Doc. 4-1 at 11 (asserting that it is unclear if Plaintiff Howland would be precluded from attending
a meeting for her civic organization when mayoral candidates are speaking or whether she may clap during a

40

activity in a shared home can be distinguished from the City employee.224 Indeed, the fact that the
City argues that the Charter Amendment excludes voting in elections and private political
conversations from its prohibitions on any political activity, an exclusion that is not found
anywhere in the text of the Charter Amendment, exacerbates the ambiguity as to what conduct is
now prohibited. The chilling effect of the Charter Amendment and the possibility of arbitrary
enforcement of its provisions are further increased by the fact that Plaintiffs are unclassified civil
servants who lack the same job protections that classified civil servants receive.225
Therefore, based on the foregoing, the Court concludes that Plaintiffs have sufficiently
shown that the Charter Amendment’s wide prohibitions and undefined terms are so vague that
people of common intelligence must necessarily guess at its meaning and differ as to its
application.226 Accordingly, the Court finds that Plaintiffs have shown a substantial likelihood of
success on their claim that the Charter Amendment is unconstitutionally vague.

candidate’s speech); Rec. Doc. 4-5 at 1–2.
224

See Rec. Doc. 4-1 at 12 (Plaintiffs arguing that the Charter Amendment is vague as to whether its
prohibitions would apply if a City employee drives a family car with a political bumper sticker on it placed by a family
member or if a spouse made a campaign contribution to a City candidate); Rec. Doc. 4-4 at 2 (Plaintiff Stephen Petit
stating in his Declaration that he features a window sticker on his vehicle supporting a current Kenner City Councilman
in an upcoming election for Jefferson Parish Council). Moreover, at the preliminary injunction hearing, the City also
could not clarify whether the Charter Amendment prohibits a Plaintiff from attending a fundraiser for a City candidate
hosted by his or her spouse in their private home, or at what point a private conversation about City candidates between
a Plaintiff and a single individual or small group would cross the line from permissible to impermissible under the
Charter Amendment. See Prelim. Inj. Tr., July 5, 2017, at 30:4–30:23 (the Court asking if an employee could tell stand
up at a spouse’s dinner party and tell others who he or she is voting for, and the City responding that it depends on
whether the person is “actively campaigning” at the dinner party or not).
225

See Rec. Doc. 4-5 at 2; see also Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

226

Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926); see also Roberts v. U.S. Jaycees, 468 U.S. 609,
629 (1984) (applying the same test); Allen v. Bartholomew Cty. Court Servs. Dep’t, 185 F. Supp. 3d 1075, 1080–81
(S.D. Ind. 2016) (applying the same void for vagueness test in a First Amendment challenge to a policy prohibiting
court employees from engaging in political activity).

41

iii.

Overbroad

Plaintiffs also contend that the Charter Amendment is overbroad.227 Plaintiffs argue that it
has no “legitimate sweep,” as there is no basis for the City to enforce content-based regulations on
all political activity related to City elections.228 In opposition, the City asserts that the Charter
Amendment is a valid restriction on public employees’ political speech, but the City does not
directly address Plaintiffs’ overbroad arguments.229
As the Fifth Circuit has noted, for a law to be overbroad, it must “reach[ ] a substantial
amount of constitutionally protected conduct.”230 According to the Fifth Circuit, a government’s
legitimate purpose to validly control or prevent some expressive conduct cannot be accomplished
“by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.”231 “Facial overbreadth scrutiny emphasizes the need to eliminate an overbroad law’s
deterrent impact on constitutionally protected expressive activity.”232
In Hobbs v. Thompson, the Fifth Circuit held that a city charter provision prohibiting fire
department employees from taking an active part in any election, contributing money to any
candidate, or “prominently identifying themselves in a political race with or against any candidate
for office” was overbroad.233 The Fifth Circuit determined that the city’s prohibitions “sweep too

227

Rec. Doc. 4-1 at 11–12.

228

Id. at 12.

229

Rec. Doc. 15.

230

Asgeirsson, 696 F.3d at 464–65.

231

Hobbs v. Thompson, 448 F.2d 456, 459–60 (5th Cir. 1971); see also Serv. Employees Int'l Union, Local 5
v. City of Houston, 595 F.3d 588, 598 (5th Cir. 2010).
232

Hobbs, 448 F.2d at 459–60.

233

Id. at 474.

42

broadly and proscribe a great deal of political activity which is unrelated to the effective workings
of the fire department” or the “proper performance of its firemen’s employment duties.” 234 The
Fifth Circuit opined that the “very fact that the scheme has been construed to forbid political
bumper stickers—a particularly innocuous form of political activity—points out clearly the
broadside nature of the Macon prohibitory regulations.”235 The Fifth Circuit in Hobbs further cited
approvingly to the California Supreme Court’s decision in Fort v. Civil Service Commission of
Alameda County, where the court invalidated a county charter provision that prohibited public
employees from taking part in a political campaign or an election except to vote or privately
express an opinion.236 The California Supreme Court in Fort concluded that the First Amendment
does not permit “wholesale restrictions on political activities merely because the persons affected
are public employees,” and because the county charter provision “encompassed both valid and
invalid restrictions on free speech,” it was overbroad.237
The Court finds that Plaintiffs have shown that there is a substantial likelihood of success
on their claim that the Charter Amendment is unconstitutionally overbroad. The Charter
Amendment plainly reaches a “substantial amount of constitutionally protected conduct,” e.g.,
Plaintiffs’ political speech.238 While the City points out that limited restrictions on public

234

Id. at 471.

235

Id.

Id. (citing Fort v. Civil Serv. Comm’n of Alameda Cty., 61 Cal. 2d 331, 333 (1964)). The Fifth Circuit
further noted with approval the holdings of state courts in City of Miami v. Sterbenz and De Stefano v. Wilson enjoining
overbroad restrictions on public employees’ political rights. Id. (citing City of Miami v. Sterbenz, 203 So. 2d 4, 5 (Fla.
1967); De Stefano v. Wilson, 96 N.J. Super. 592, 597, 233 A.2d 682, 685 (Law. Div. 1967)).
236

237

Fort, 61 Cal. 2d at 338–39.

238

See Clark, 582 F.3d at 612; see also Allen, 185 F. Supp. 3d at 1080–81 (finding that a policy prohibiting
all political activity by public employees clearly reaches a “substantial amount of constitutionality protected
conduct”).

43

employees’ political activities have been upheld in other cases, the Charter Amendment “sweep[s]
too broadly” by going well beyond targeted restrictions on political activities and including a
substantial amount of protected political expression that is either unrelated to or attenuated from
the City’s goals and the Plaintiffs’ employment duties.239 Indeed, unlike the laws challenged in
Hobbs and Fort, the Charter Amendment fails to even exclude voting or privately expressing an
opinion from its overbroad reach. Accordingly, the Court finds that Plaintiffs have demonstrated
a substantial likelihood of success on their claim that the Charter Amendment is unconstitutionally
overbroad.
iv.

Prior Restraint

Finally, Plaintiffs argue that the Charter Amendment is an unconstitutional “prior restraint”
in that it “is based on the content of the message conveyed.”240 The City does not directly respond
to Plaintiffs’ argument regarding prior restraint.241
The prior restraint doctrine typically refers to administrative and judicial orders “forbidding
certain communications when issued in advance of the time that such communications are to
occur.”242 However, First Amendment case law typically distinguishes prior restraints from laws
that impose penalties on expression after it occurs.243 In Serafine v. Branaman, the Fifth Circuit
considered whether the Psychologists’ Licensing Act, which prohibited a political candidate from

Hobbs, 448 F.2d at 460, 471 (holding that even if “the interests a statute promotes may justify some
infringement upon First Amendment rights, the overbreadth doctrine condemns those means to that legitimate end
which comprehend too broad an incursion upon the realm of First Amendment activity”).
239

240

Rec. Doc. 4-1 at 13.

241

Rec. Doc. 15.

242

Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech
§ 4.03, 4–14 (1984)) (quotation marks omitted).
243

2 Smolla & Nimmer on Freedom of Speech § 15:1.

44

describing herself as a “psychologist” on her website, was an unconstitutional prior restraint. 244
The Fifth Circuit held that it was not, as there is a “clear distinction, solidly grounded in our cases,
between prior restraints and subsequent punishments” penalizing past speech.245 “Prior restraints
typically involve administrative and judicial orders [such as temporary restraining orders and
permanent injunctions] forbidding certain communications when issued in advance of the time that
such communications are to occur[,] or, in other words, laws which require a speaker to obtain
prior approval for any expressive activities.”246
Here, it is unclear how Plaintiffs’ prior restraint claim applies to the Charter Amendment.
The Charter Amendment does not impose a “permitting scheme” that controls the “time, place,
and manner of speech” or require the speaker to “obtain prior approval for any expressive
activities.”247 Nor does the Charter Amendment appear to be the equivalent of an administrative
or judicial order “forbidding certain communications when issued in advance of the time that such
communications are to occur.”248 That is, Plaintiffs have not shown that the Charter Amendment
is a “prior restraint” as opposed to a “subsequent punishment[]” that “penalize[es] past speech.”249
Accordingly, the Court cannot find at this time that Plaintiffs have shown a substantial
likelihood of success on their prior restraint claim under the First Amendment. Regardless, because

244

810 F.3d 354, 370 (5th Cir. 2016).

Id. (quoting Gibson v. Tex. Dep’t of Ins., 700 F.3d 227, 235 (5th Cir. 2012)) (quotation marks omitted);
see also Gibson v. Texas Dep’t of Ins. Div. of Workers’ Comp., 700 F.3d 227, 235 (5th Cir. 2012) (determining that a
law requiring organizations to register with the state before accepting political contributions in excess of $500 was
not a prior restraint).
245

246

Gibson, 700 F.3d at 235.

247

Nationalist Movement, 505 U.S. at 126; Gibson, 700 F.3d at 235.

248

Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech
§ 4.03, 4–14 (1984)) (quotation marks omitted).
249

Gibson, 700 F.3d at 235.

45

Plaintiffs have sufficiently shown a substantial likelihood of success on their other constitutional
claims, i.e. that the Charter Amendment is a violation of their First Amendment rights, vague, and
overbroad, Plaintiffs have met the first prong of the preliminary injunction analysis.250
2.

Irreparable Harm

Next, Plaintiffs contend that they will suffer irreparable harm if the preliminary injunction
is not granted, as Plaintiffs aver that the Supreme Court has determined that the loss of their First
Amendment freedoms “for even minimal periods of time” constitutes irreparable injury. 251 In
opposition, the City argues that Plaintiffs have not shown that they will suffer irreparable harm if
the injunction is not granted, as the next City primary election is almost nine months away.252
The Supreme Court has opined that “[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”253 In Opulent Life Church
v. City of Holly Springs, Mississippi, the Fifth Circuit determined that a church challenging a ban
on using a public courthouse square had satisfied the irreparable harm requirement because it had
alleged violations of its First Amendment rights.254
Here, Plaintiffs have alleged that the Charter Amendment precludes the exercise of their
First Amendment freedoms and chills their protected speech.255 Plaintiffs have also alleged that
they had previously participated in the local political process prior to the enactment of the Charter
250

Because the Court finds that Plaintiffs have demonstrated a substantial likelihood of success on their
constitutional claims, the Court need not address Plaintiffs’ alternative state law claims.
251
Id. at 14–15 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976); Deerfield Med. Ctr. v. City of Deerfield
Beach, 661 F.2d 328, 338 (5th Cir. 1981)).
252

Id. at 18.

253

Elrod v. Burns, 427 U.S. 347, 373 (1976).

254

697 F.3d 279, 295 (5th Cir. 2012).

255

Rec. Doc. 1 at 13.

46

Amendment, were prevented from doing so again in the 2016 Special Election, and cannot
participate in the upcoming 2018 Kenner City Elections due to the Charter Amendment unless a
preliminary injunction is granted.256 Moreover, the next primary election for City of Kenner
candidates is set for March 24, 2018, and there appears to be a substantial threat to Plaintiffs that
this case will not be resolved in sufficient time for Plaintiffs to meaningfully participate in the
2018 Kenner City Elections if a preliminary injunction is not issued. Based on the foregoing, the
Court concludes that Plaintiffs have met their burden in establishing that there is a substantial
threat that failure to grant the injunction will result in irreparable injury.257
3.

Threatened Injury Outweighs the Harm

Next, Plaintiffs assert that the potential for injury to Plaintiffs’ rights if injunctive relief is
not granted “far outweighs” any harm if a preliminary injunction is granted.258 Plaintiffs aver that
the City has no interest in enforcing an unconstitutional Charter provision, and that it is clear that
the injuries associated with a loss of First Amendment freedoms justifies granting a preliminary
injunction.259 In opposition, the City argues that Plaintiffs face no injury here, as it contends that
the Charter Amendment is constitutional.260 The City also contends that the threatened harm to it
if the injunction is granted is great, as it has an interest in preventing City employees from taking
part in partisan local political activities and enforcing the will of its voters.261

256

See Rec. Docs. 4-4,4-5,4-6.

257

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).

258

Rec. Doc. 4-1 at 15.

259
Id. (quoting Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); Lionhart
v. Foster, 100 F. Supp. 2d 383, 392 (E.D. La. 1999)).
260

Rec. Doc. 15 at 19.

261

Id. at 20.

47

In Opulent Life Church, the Fifth Circuit noted that, after concluding that the plaintiff’s
harm to its religious liberties rights under the First Amendment was irreparable, the defendant
“would need to present powerful evidence of harm to its interests to prevent [the plaintiff] from
meeting this requirement.”262 Here, as described supra, Plaintiffs have shown that there is a
substantial threat of irreparable injury if a preliminary injunction is not granted, as they will
continue to be deprived of their right to freedom of expression. By contrast, the City has not shown
that there is sufficient harm to its interests to justify denying Plaintiffs’ motion for a preliminary
injunction. Accordingly, the Court concludes that Plaintiffs have met their burden in establishing
that the threatened injury outweighs any damage that the injunction will cause to the City.263
4.

Public Interest

Finally, Plaintiffs contend that granting a preliminary injunction here will serve the public
interest, as it will protect their rights as citizens to engage in free speech while the parties
conclusively determine whether the Charter Amendment is constitutional.264 In opposition, the
City contends that the majority of participating voters in Kenner approved the Charter Amendment
“based on their vested interest in independent and efficient government employees,” and therefore
granting the preliminary injunction will disserve the public interest. 265
In Opulent Life Church, the Fifth Circuit held that “injunctions protecting First Amendment
freedoms are always in the public interest.”266 Here, Plaintiffs have made a strong showing that

262

697 F.3d at 297 (ultimately remanding the case to the district court to allow the defendant to put on
evidence as to the third prong, as the district court had denied the motion for a preliminary injunction on the second
prong).
263

Janvey, 647 F.3d at 595.

264

Rec. Doc. 4-1 at 15.

265

Rec. Doc. 15 at 20.

266

697 F.3d at 298. See also Ingebretsen v. Jackson Public School District, 88 F.3d 274, 280 (5th Cir. 1996)

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their rights under the First and Fourteenth Amendments are violated by the broad prohibitions in
the Charter Amendment. Accordingly, the Court finds that granting a preliminary injunction here
will not do disservice to the public interest.267
C.

Amount of Security
Pursuant to Federal Rule of Civil Procedure 65(c), “[t]he court may issue a preliminary

injunction . . . only if the movant gives security in an amount that the court considers proper to pay
the costs and damages sustained by any party found to have been wrongfully enjoined or
restrained.”268 However, the Fifth Circuit has recognized that the amount of security required
pursuant to Rule 65(c) is a matter of discretion of the trial court, and a court “may elect to require
no security at all.”269 Neither Plaintiff nor Defendants have addressed the issue of security.
Plaintiffs are City employees seeking to enjoin the enforcement of the Charter Amendment
and its prohibition against Plaintiffs engaging in “any political activity on behalf of city candidates
in City of Kenner elections.” Defendants have neither requested security in the event that this
Court grants a preliminary injunction, nor have they presented any evidence that they will be
financially harmed if they are wrongfully enjoined. Because Plaintiffs seek only to exercise their
First Amendment rights after work hours pending a final judgment in this case, and Defendants
have not identified any risk of monetary loss to them as a result of this preliminary injunction, the
Court concludes that no security is required.

(determining that because the “School Prayer Statute” challenged in that case was unconstitutional, “the public interest
was not disserved by an injunction preventing its implementation”).
267

Janvey, 647 F.3d at 595.

268

Fed. R. Civ. P. 65(c).

269

Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (quoting Corrigan Dispatch Co. v. Casa
Guzman, 569 F.2d 300, 303 (5th Cir. 1978)).

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V. Conclusion
For the reasons stated above, the Court concludes that Plaintiffs have carried their burden
on all four factors identified by the Fifth Circuit to prevail on a motion for a preliminary injunction.
Plaintiffs have shown that they have a substantial likelihood of success on the merits of their claims
that the Charter Amendment violates their First Amendment rights to engage in political speech,
is unconstitutionally vague, and is overbroad. Plaintiffs have also shown that there is a substantial
threat that failure to grant the injunction will result in irreparable injury to Plaintiffs, that the
threatened injury outweighs any damage that the injunction will cause to Defendants, and an
injunction will not disserve the public interest.270 Therefore, the Court hereby grants Plaintiffs’
motion for a preliminary injunction and enjoins Defendants and their agents from enforcing
Kenner City Charter Article I, Section 1.06 until there is a final judgment in this case. The Court
also concludes that no security is required. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Motion for Preliminary Injunction”271 is
GRANTED and that Defendants and their agents are enjoined from enforcing Kenner City Charter
Article I, Section 1.06 until there is a final judgment in this case.
NEW ORLEANS, LOUISIANA, this 26th day of July, 2017.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

270

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).

271

Rec. Doc. 4.

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