-53.
29
   Id. at 554 
(quoting Cortez v. Trans Union, LLC, 
617 F.3d
688
, 718 (3d Cir. 2010)).
30
   Acumed LLC v. Advanced Surgical Servs. Inc., 
561 F.3d
199
, 211 (3d. Cir. 2009).
31
   See Starceski v. Westinghouse Elec. Corp., 
54 F.3d 1089
,
1095 (3d Cir. 1995) (“In reviewing a district court’s denial of
                                7
the evidence in the light most favorable to the non-moving
party and enter judgment as a matter of law if, upon review of
the record, “there is insufficient evidence from which a jury
reasonably could find liability.”32

           IV.       DISCUSSION

        “Nothing in the Constitution requires the Government
freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without
regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.”33 A city’s liability
for an alleged First Amendment violation must be based upon
a policy or custom of the city rather than upon the act of an
individual city employee.34 Accordingly, when a First
Amendment challenge is brought against a city, we must first
determine what official city policy or custom is at issue for the
purposes of § 1983, and then identify and apply the correct
First Amendment principles to that policy based on the nature
and use of the government owned or controlled forum where
the speech occurred.

 A.    Characteristics of Philadelphia’s Sheriff’s Sales

      A mortgage foreclosure sheriff’s sale is a court-ordered
public auction of foreclosed properties organized by the
government.35 A mortgage holder can initiate a foreclosure

a motion for a new trial[,] . . . if the court’s denial of the
motion is based on application of a legal precept, our review
is plenary . . . .”).
32
   
Mancini, 836 F.3d at 314 
(quoting Lightning Lube, Inc. v.
Witco Corp., 
4 F.3d 1153
, 1166 (3d Cir. 1993)).
33
   Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 
473
U.S. 788
, 799-800 (1985).
34
   
Monell, 436 U.S. at 690
.
35
   Porter, 
337 F. Supp. 3d 
at 547 (describing the sheriff’s sale
as “a public auction of real property, carried out by a
governmental entity, pursuant to a state statute providing for
orderly and public opportunity to acquire properties that have
been foreclosed upon for failure to pay outstanding
mortgages.”); Philadelphia Sheriff’s Dep’t, Everything You
Need to Know About Sheriff Sales,
                                8
action against a property owner who has defaulted on a
mortgage and obtain a judgment in foreclosure.36 The
mortgage holder can then obtain and file a writ of execution
directing the sheriff to sell the property at a public auction.37 It
is the sheriff’s duty to conduct sheriff’s sales and set policies
and procedures for these auctions.38 In Philadelphia, sheriff’s
sales take place once a month in a room about four times the
size of a typical courtroom.39 Maintaining an orderly
environment is necessary to efficiently sell hundreds of
properties and avoid chaos.40 Because hundreds of foreclosed
properties are sold at each auction, the auction is conducted
with the decorum of a courtroom.41 In an effort to maintain
such an environment, the sheriff has adopted an unwritten
policy barring comments or announcements from non-




https://www.officeofphiladelphiasheriff.com/en/real-
estate/how-sheriffs-sales-work (last visited Sept. 3, 2020).
36
   Ohio App. 965-66
.
37

   Id. at 966-67; 
see also App. 504 (explaining that the
Sheriff’s Office is “acting [as] the court’s arm selling . . .
property” at a sheriff’s sale).
38
   See, e.g., App. 966; City Br. at 8-9; App. 384 (describing
the duty of the sheriff to “[m]ake sure the sheriff’s sale[s] run
accordingly.”); see also Pa. R.C.P. 3129.1, 3129.2, 3129,3,
and 3135 (describing the procedures of and the sheriff’s
duties regarding sheriff’s sales); 68 Pa. Stat. and Cons. Stat.
Ann. § 2310 (West) (providing for a commission to be paid to
the sheriff for the service of conducting mortgage
foreclosures sales); 42 Pa. Stat. Ann. § 21104(b)-(c) (same);
43 Pennsylvania Law Encyclopedia, Sheriffs and Constables
§ 89 (2019) (“It is the duty of a sheriff to make a sale of a
judgment debtor’s property in accordance with the court’s
writ.”).
39
   City Br. at 8.
40
     Ohio App. 504
; City Br. at 8.
41
     Ohio App. 390-91
; 504.
                                 9
bidding42 members of the public during the sale.43 A property
owner, or his or her attorney, may present a court order or
bankruptcy petition to stop or postpone the sale when a
property comes up for auction, but all other comments are
prohibited.44

B.     Monell Claims under § 1983

        Pursuant to the Supreme Court’s holding in Monell, a
city is only liable under § 1983 for constitutional violations that
are caused by its official policies and customs.45 “[A]
municipality cannot be held liable solely because it employs a

42
   To the extent that a bid and directly related speech (i.e.
offering a price) can be construed as a public announcement,
naturally this is allowed. That is how we understand the
City’s references in its brief, see City Br. at 8, 19, 24, to the
policy prohibiting “non-bidders” from speaking. See also City
Br. at 19 (“[I]t is inherently reasonable to preclude all non-bid
comments during an auction . . .”). Nowhere does the City
argue, nor do we imply, that the ban on public
announcements allows bidders to make public
announcements unrelated to bids.
43
   The District Court concluded that “the uncontroverted
evidence [is] clear that the Sheriff’s Office had a policy of
forbidding announcements at sales.” Porter, 
337 F. Supp. 3d
at 548. This is consistent with the testimony of several
witnesses from both Porter and the City, including Sheriff
Barbara Deeley.
 Id. at 547 
(“The defendant Sheriff at trial
admitted . . . the existence of a policy forbidding
announcements at Sheriff’s sales.”); see also
 id. at 539-40;
App. 390; App. 504-05.
44
   City Br. at 8-9.
45
   
Monell, 436 U.S. at 690 
(“Local governing bodies . . . can
be sued directly under § 1983 for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.”); see also Baloga v.
Pittston Area Sch. Dist., 
927 F.3d 742
, 761 (3d Cir. 2019)
(explaining that a municipality is only liable for a policy or
custom promulgated by an actor with final decision-making
authority).
                                10
tortfeasor . . . in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.”46 A
policy need not be passed by a legislative body, or even be in
writing, to constitute an official policy for the purposes of §
1983. A pertinent decision by an official with decision-making
authority on the subject constitutes official policy.47 Therefore,
we must first determine whether the conduct that gave rise to
Porter’s First Amendment claim was pursuant to an official
policy or custom. If it was, that conduct could support Porter’s
Monell claim. In contrast, if the conduct was simply that of an
individual employee who was not acting pursuant to a policy
or custom, that conduct cannot give rise to municipal liability
under Monell.

        As the District Court explained, there is uncontroverted
evidence from multiple witnesses, including Sheriff Deeley,
that the City had an unwritten policy prohibiting comments
during sheriff’s sales.48 Sheriff Deeley testified that she had a
duty to “[m]ake sure the sheriff’s sale[s] run accordingly”49
and the District Court instructed the jury that “[o]ne of the
duties of the Sheriff is to conduct sheriff’s sales.”50 Likewise,
the District Court instructed the jury that “[t]he policy or
custom at issue here, as testified by representatives of the
sheriff’s office, is not to allow announcements or statements at
a sheriff’s sale,”51 and furthermore that there was not “any
dispute” that “[t]he Sheriff’s Office had the policy not to allow



46
    
Monell, 436 U.S. at 691
.
47
    Pembaur v. City of Cincinnati, 
475 U.S. 469
, 483-84
(1986) (“Municipal liability under § 1983 attaches where . . .
a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question.”).
48
    Porter, 
337 F. Supp. 3d 
at 548.
49
    Ohio App. 384
.
50
    Ohio App. 966
; see also Pa. R.C.P. 3145 (describing the sheriff’s
legal duties regarding sheriff’s sales); App. 504 (explaining
that the Sheriff’s Office is “acting [as] the court’s arm selling
. . . property” at a sheriff’s sale).
51
    Ohio App. 980
.
                               11
announcements at sheriff’s sales.52 We therefore conclude that
the City’s policy of precluding public announcements at
sheriff’s sales was an official policy of the City for purposes of
§ 1983 liability under Monell.

        Given Porter’s allegation that policy was subjectively
and inconsistently enforced, it may have been preferable to
submit the existence, nature, and reasonableness of the policy
to the jury.53 Nevertheless, the District Court removed any
possibility that the jury would consider this issue when it
instructed the jury that the sheriff’s office had a policy against
announcements that was unconstitutional as applied to the
plaintiffs.54 The jury was therefore not called upon to
determine the contours of the City’s policy or its
reasonableness. We review the District Court’s conclusion
regarding the existence and nature of the policy de novo. We
credit its ruling that the policy prohibiting public comments
existed, but we disagree with the analysis the followed from
that finding.

       The District Court held that the City’s policy violated
Porter’s First Amendment right to free speech. In doing so, it

52
   Ohio App. 1013 
(“You heard testimony about the policy. I don’t
think there’s any dispute about it. The Sheriff’s Office had the
policy not to allow announcements at sheriff’s sales.”).
53
   See App. 6-9 (Verdict Sheet).
54
   See App. 972-73 (“You have heard testimony that the
sheriff’s office had a policy against announcements. I instruct
you that this policy, as applied to the plaintiffs at the hearing,
was in violation of their constitutional right to freedom of
speech and to petition. Plaintiff’s [sic] attempt to speak was in
furtherance of their constitutional right to speak and to
petition.”); see also App. 981 (“I instruct you that the
Sheriff’s policy was violative of the First Amendment if you
find it was relied on by Defendants Chew and Stewart or the
employees of the sheriff’s office to cause Porter to be
interrupted and seized as he was speaking.”); App. 1013
(“The Sheriff’s Office had the policy not to allow
announcements at sheriff’s sales . . . if you find that that
policy was applied as to Mr. Porter, that was a violation of his
constitutional rights—the policy was, for which the city is
liable.”).
                               12
relied upon Chew’s testimony that he did not allow
announcements that could depreciate the value of an auctioned
property in concluding that the policy discriminated based on
viewpoint.55 The District Court also concluded that a
“plausible nexus or affirmative link” between the City’s policy
prohibiting announcements during the sheriff’s sale and
Chew’s “brutal implementation [of the policy] through
physical force” is sufficient to hold the City liable under
Monell.56 Similarly, Porter acknowledges that “the evidence
established that the City had a policy of not allowing
announcements at sheriff’s sales,” but maintains that Chew
“inconsistently enforced it based on what the speaker wanted
to say.”57

       However, Porter has not shown that Chew was a
policymaker.58 To the extent the District Court suggests that
the City is liable for Chew’s individual decision-making, we
cannot agree. His unendorsed actions, without more, did not
become municipal policy or give rise to municipal liability
under Monell. There is no evidence to suggest that municipal
decision-makers were aware of Chew’s inconsistent
implementation of the no-comment policy or that Chew had
previously used force to enforce it with the tacit approval of
policymakers.59 To the contrary, trial testimony indicates that
the Sheriff’s Office’s policy was to ask people who tried to
make announcements to sit down and, if they did not comply,



55
   Porter, 
337 F. Supp. 3d 
at 552-53.
56
   Porter, 
337 F. Supp. 3d 
at 553.
57
   Porter Br. at 11.
58
   Kelly v. Borough of Carlisle, 
622 F.3d 248
, 264-65 (3d Cir.
2010) (rejecting a § 1983 plaintiff’s Monell claim where
plaintiff “presented no evidence that [the chief of police] was
a final policymaker for the Borough” whose actions or
decisions subjected the City to liability).
59
   See City of St. Louis v. Praprotnik, 
485 U.S. 112
, 130
(1988) (“[T]he mere failure to investigate the basis of a
subordinate’s discretionary decisions does not amount to a
delegation of policymaking authority, especially where . . .
the wrongfulness of the subordinate’s decision arises from a
retaliatory motive or other unstated rationale.”).
                              13
to escort them out of the hall.60 Furthermore, one Sheriff’s
Office clerk testified that the violent response was something
he “[had] never [seen] . . . before” at a sheriff’s sale and agreed
that it was “out of character of the normal conduct of
business.”61 While the District Court found that the deputies
approached Porter “at the request of Chew”62 and that “Chew
apparently asked for such a response,”63 the fact that Chew
apparently had the authority to direct the deputies to stop Porter
from speaking does not make his decision to do so City policy.
“The fact that a particular official . . . has discretion in the
exercise of particular functions does not, without more, give
rise to municipal liability based on an exercise of that
discretion.” 64 Rather, “[t]he official must also be responsible
for establishing final government policy respecting such
activity before the municipality can be held liable.”65 Thus, we
cannot conclude that Chew’s unofficial determination of how
and when the policy was to be enforced, in contravention of the
City’s clear and nondiscriminatory policy prohibiting all
comments, gives rise to liability under Monell.


60
   Ohio App. 336 
(testifying about his experience witnessing over
600 sheriff’s sales, Sheriff’s Office clerk Richard Tyer
explained that people who attempt to make announcements
are “told to sit down,” and “if they don’t comply, then they’ll
be escorted out.”); see also App. 466 (Sheriff’s Office clerk
Michael Riverso testifying that individuals making
announcements are told to sit down); App. 552-53 (Witness
Daryll Stewart explaining that procedure when someone
stands up to make an announcement is to “ask them to step to
the side” and then deal with the person’s issue individually).
61
   Ohio App. 468
.
62
   Porter, 
337 F. Supp. 3d 
at 552.
63

   Id. at 553.
64
   
Pembaur, 475 U.S. at 481-83 
(internal citation omitted).
65
   Id.; see also 
Praprotnik, 485 U.S. at 129 
(finding that even
decisions by supervisory employees that are not reviewed by
any higher official are not necessarily official city policy for
purposes of § 1983 if the employee does not have
policymaking authority); 
Kelly, 622 F.3d at 265 
(holding that
a city is not liable for a police officer’s decision to arrest the
plaintiff in a § 1983 suit because the decision was not
reviewed and ratified by a municipal policymaker).
                                14
C.     First Amendment Forum Analysis
        Having identified the City’s policy for the purposes of
§ 1983 liability, we next must determine the First Amendment
principles applicable to speech at a mortgage foreclosure
sheriff’s sale. Because Porter’s speech is not obscene, geared
towards the incitement of violence, or libelous, it is undeniably
protected by the First Amendment.66 Accordingly, we can
proceed directly to a discussion of the forum to determine the
extent to which the City could limit Porter’s right to free speech
during a sheriff’s sale. When it comes to First Amendment free
speech challenges, “not every public property is the same, and
different types of property will require different treatment.”67
There are three types of protected forums for speech occurring
on government owned or controlled property.68 The type of
forum in which the relevant speech takes place “determines the
contours of the First Amendment rights that a court recognizes
when reviewing the challenged governmental action.”69

       Traditional public forums are places that the
government has historically held out for speech and assembly,
such as public streets and parks.70 Traditional public forums
are entitled to the greatest protection of speech. Accordingly,
any content-based restrictions will receive strict scrutiny.71


66
   See Eichenlaub v. Twp. of Indiana, 
385 F.3d 274
, 282-83
(3d Cir. 2004) (“[E]xcept for certain narrow categories
deemed unworthy of full First Amendment protection—such
as obscenity, ‘fighting words’ and libel—all speech is
protected by the First Amendment.”).
67
   NAACP v. City of Phila., 
834 F.3d 435
, 441 (3d Cir. 2016)
(explaining that “the Supreme Court has grouped public
properties along a spectrum” where First Amendment
protections are determined based on the nature and use of the
public property).
68

   Id.
69
   Galena v. Leone, 
638 F.3d 186
, 197 (3d Cir. 2011); see
also See United States v. Marcavage, 
609 F.3d 264
, 274 (3d
Cir. 2010) (“The degree of First Amendment protection a
speaker enjoys depends on the type of forum in which his
expressive activity occurred.”).
70
   
NAACP, 834 F.3d at 441
.
71

   Id.
                               15
While the government may impose reasonable time, place, and
manner restrictions on speech, viewpoint-based restrictions are
prohibited.72 Designated public forums are properties that have
“not traditionally been regarded as a public forum [but are]
intentionally opened up for that purpose.”73 When the
government opens a forum for speech-related activity, the
same standards apply as in a traditional public forum.74 Finally,
a nonpublic forum (or limited public forum) is a public
property that has “not, as a matter of tradition or designation,
been used for purposes of assembly and communication.”75



72
   Minn. Voters Alliance v. Mansky, 
138 S. Ct. 1876
, 1885
(2018).
73

   Id. (quoting Pleasant Grove 
City, Utah v. Summum, 
555
U.S. 460
, 469 (2009)).
74

   Id.
75

   Id. The “nonpublic forum” 
has also sometimes been
referred to as the “limited public forum,” creating confusion
about whether there is a difference between these two
classifications. As we explained in NAACP, the Supreme
Court recently has used the terms “limited public forum” and
“nonpublic forum” interchangeably, suggesting that, if there
is a distinction, these two categories are afforded the same
treatment.
 Id. at 441 
n.2; see also 
Galena, 638 F.3d at 197 
n.8
(acknowledging the inconsistency among federal court and
Supreme Court opinions on whether “limited public forum”
and “nonpublic forum” are separate and distinct categories,
but suggesting the Supreme Court has recently used the terms
interchangeably). We will follow the Supreme Court’s most
recent application of the forum analysis in 
Mansky, 138 S. Ct.
at 1885
. There, the Supreme Court identified the three forums
as traditional public forum, designated public forum, and
nonpublic forum and applied the definition and legal test to
the “nonpublic forum” that this Court has applied to the
“limited public forum.”
 Id. We need not 
resolve today the
lingering doubt about the distinction between a “nonpublic”
and “limited public” forum. The parties here agree that the
sheriff’s sale is a “limited public forum,” which, for our
purposes, we find synonymous with the nonpublic forum. We
will therefore apply the principles of the nonpublic forum, as
discussed in Mansky, to the sheriff’s sale.
                               16
Rather, it is “a forum that is limited to use by certain groups or
dedicated solely to the discussion of certain subjects.”76

        A nonpublic forum is entitled to lesser First
Amendment protection than the other two forums.
Accordingly, the government is allowed “much more
flexibility to craft rules limiting speech.”77 “The government
may reserve such a forum ‘for its intended purposes,
communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.’”78
Content-based restrictions on speech are valid so long as they
are reasonable in light of the purpose of the forum and
viewpoint neutral.79

        The parties conceded that the sheriff’s sale is a limited
public forum, and the District Court agreed.80 To the extent that
the District Court adopted the definition and legal test
applicable to the “nonpublic forum” as outlined by the
Supreme Court in Mansky, we agree and find the two terms
interchangeable for the purpose of a First Amendment forum
analysis here. However, to the extent that the District Court
applied the test for a “time, place, and manner” restriction to
the City’s no announcement policy, we will reverse course.
The Supreme Court in Mansky made a distinction between
traditional and designated public forums, where restrictions on
the time, place, and manner of speech are subject to certain


76
   Pleasant 
Grove, 555 U.S. at 470
.
77
   
Mansky, 138 S. Ct. at 1885
.
78

   Id. (quoting Perry Educ. 
Ass’n. v. Perry Local Educators’
Ass’n., 
460 U.S. 37
, 46 (1983)).
79
   
NAACP, 834 F.3d at 441
.
80
   Porter, 
337 F. Supp. 3d 
at 547. The City briefly questions
whether a forum analysis applies to the sheriff’s sale as a
“Court-like proceeding,” but agrees that if a forum analysis
applies that the auction is a limited public forum. City Br. at
22-23, n.5. Although the auction apparently maintains the
decorum of a courtroom and is described as similar to a court
proceeding, it is not a formal judicial proceeding, and we
therefore maintain that a forum analysis applies to the
sheriff’s sale.
                               17
limitations,81 and the nonpublic forum, where “on the other
hand . . . the government has much more flexibility to craft
rules limiting speech.”82 The Supreme Court discussed the
government’s right to “impose reasonable time, place, and
manner restrictions on private speech,” subject to certain
restrictions, only in reference to the traditional and designated
public forums.83 This is consistent with the Court’s explanation
that the nonpublic forum is subject to “a distinct standard of
review . . . because the government, ‘no less than a private
owner of property,’ retains the ‘power to preserve the property
under its control for the use to which it is lawfully
dedicated.’”84 We therefore decline to apply the three-part test
appliable to time, place, and manner restrictions to the
nonpublic forum at issue here.

       Moreover, the District Court stated that the Sheriff’s
Office “has no right to forbid an individual with an interest in
the property making a short statement as to the individual’s
interest in the property being offered for sale.”85 We disagree.
As the government entity charged with conducting sheriff’s
sales, the Sheriff’s Office has the right to limit speech in
accordance with the First Amendment principles applicable to
nonpublic forums.86 During the sheriff’s sale, the space utilized

81
   A time, place, and manner restriction is reasonable if it: 1)
is content-neutral; 2) is narrowly tailored to serve an
important government interest; and 3) leaves open ample
alternatives for communication of the information. 
Galena,
638 F.3d at 199
.
82
   
Mansky, 138 S. Ct. at 1885 
(citations omitted).
83

   Id.
84

   Id. (quoting Adderly v. 
Florida, 
385 U.S. 39
, 47 (1966)).
85
   Porter, 
337 F. Supp. 3d 
at 547.
86
   Similarly, although the District Court introduced the
concept of a forum analysis to the jury at trial, it essentially
removed any possibility of the jury’s assessing the
constitutionality of the City’s policy in a limited or nonpublic
forum when it instructed the jury that “Mr. Porter had a
constitutionally-protected right to speak at the sheriff’s sale in
order to make the announcement that had been discussed with
their attorney,” App. 972, and that “the sheriff’s office had a
policy against announcements,” which, “as applied to the
plaintiffs at the hearing, was in violation of their
                               18
is limited to use by the Sheriff’s Office for the exclusive
purpose of holding a public auction of foreclosed properties.
Because the sheriff’s sale is a nonpublic forum, the Sheriff’s
Office policy prohibiting comments during the auction is valid
so long as it is viewpoint neutral and reasonable in light of the
City’s right “‘to preserve the property under its control for the
use to which it is lawfully dedicated[:]’” conducting a public
auction of foreclosed properties.87

D.   First Amendment Analysis of the Sheriff’s Office’s
No Comment Policy

       We conclude that the Sheriff’s Office’s policy
prohibiting comments during the sheriff’s sale is a reasonable,
viewpoint neutral speech restriction aimed at protecting the
Sheriff’s Office’s ability to sell hundreds of foreclosed
properties in a single auction.88 Moreover, any abuse of
discretion by Chew in enforcing a clear and non-discriminatory
policy prohibiting all comments does not alone give rise to
municipal liability.

                                     1. Reasonableness
       We hold that the policy forbidding public comments
during sheriff’s sale auctions is a reasonable speech restriction
that serves the purpose of the sheriff’s sale: the orderly
disposition of hundreds of properties in a single auction.
Because this is a nonpublic forum, the government is not
required to adopt the least restrictive policy nor show that the
policy is narrowly tailored to protect a compelling



constitutional right to freedom of speech and to petition,”
App. 973. The City contends that this directed the jury’s
verdict. We agree.
87

   Id.
88
   Our discussion here is focused on the mortgage foreclosure
sheriff’s sale and the unique circumstances and requirements
of such a forum. The specific analysis does not necessarily
apply to other types of nonpublic forums. This is particularly
true of our discussion of reasonableness. Any analysis of
reasonableness must focus on the needs of the speaker to
communicate a given message as well as the needs of the
forum in which s/he wants to speak.
                               19
government’s interest.89 Rather, the government need only
“draw a reasonable line” and “be able to articulate some
sensible basis for distinguishing what may come in from what
must stay out.”90

       During an auction—described as a court-like
proceeding—all speech by non-bidders is inherently
disruptive.91 An auction requires a clear and direct line of
communication between bidders and the auctioneer in order to
complete each sale, especially in a room with hundreds of
people. “[T]he interruption of the order of business is itself the
disturbance” that the City’s policy seeks to avoid.92 Allowing
public comments during the sheriff’s sale would threaten the
Sheriff’s Office’s ability to conduct an auction, a proceeding
specifically provided for under Pennsylvania law.93 As the City
explains, “public comment or discussion of a property would
undoubtedly bog down a sale and cause chaos.”94 The Sheriff’s
Office therefore prohibits public announcements and further
requires an interested person to obtain a court order or present
a bankruptcy petition in order to stop a sale.95 The requirement

89
   
NAACP, 834 F.3d at 441
.
90
   
Mansky, 138 S. Ct. at 1888
; see also 
NAACP, 834 F.3d at
441 
(“[T]he Government’s decision to restrict access . . . need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation”) (internal quotation marks and
citation omitted).
91
   Ohio App. 390-91 
(explaining that the sheriff’s sale maintains
the decorum of a court proceeding).
92
   
Galena, 638 F.3d at 212
.
93
   See 
Mansky, 138 S. Ct. at 1885 
(“[T]he government . . .
retains the power to preserve the property under its control for
the use to which it is lawfully dedicated.”) (internal quotation
marks and citation omitted).
94
   City Br. at 27-28 n.7; see also App. 504-05 (according to
Chew’s testimony: “Can you imagine if everyone . . . stood
up and made an announcement for every one of those
properties? It would be chaos.”).
95
   Although enforcing the order (and thereby stopping the
sale) will generally signal to the public that the property is no
longer for sale, this does not convert the order into a public
comment or announcement. Even if we were to construe this
rule as a content-based restriction (i.e. a person with a court
                               20
that a property owner take advantage of the available court
processes to obtain an order or petition staying or postponing
the sale, rather than make unsubstantiated public claims about
his or her interest in a property, is a “sensible basis for
distinguishing what may come in from what must stay out.”
Therefore, the City’s policy prohibiting public comments
during the auction, in the absence of a court order or
bankruptcy petition, is a reasonable way to promote the
efficient sale of properties by auction. Porter attempted to
obtain such an order—several times—and failed.96 The City’s
reasonable policy therefore applied to Porter.

        The City’s policy prohibiting all public announcements
is distinguishable from the state statute the Supreme Court
found unconstitutional in Mansky.97 There, Minnesota banned
voters from wearing any political badges, political buttons, or
political insignia inside a polling place on election day.98 The
ban applied to any item “promoting a group with recognizable
political views.”99 The Supreme Court found that this law
violated the First Amendment right to free speech because it
left the word “political” undefined and thereby granted
unfettered discretion to election judges to determine what was
prohibited.100 In the Court’s view, the “unmoored use of the
term ‘political’ in the Minnesota law” left election officials
without “objective, workable standards” to guide their
discretion.101 “A rule whose fair enforcement requires an
election judge to maintain a mental index of the platforms and

order or bankruptcy petition may announce that the property
is no longer for sale), such restrictions are allowed in a
nonpublic forum. 
NAACP, 834 F.3d at 441 
(explaining that,
in a nonpublic forum, “[c]ontent-based restrictions are valid
so long as they are reasonable and viewpoint neutral.”).
Because the court had denied Porter’s repeated motions to
stay or postpone the sale, Porter—as well as his attorney and
Commerce Bank’s attorney (had they been present)—was
bound by the policy prohibiting public announcements.
96
   City Br. at 27.
97
   
138 S. Ct. 1876
.
98

   Id. at 1882.
99
   Id. at 1890.
100
    Id. at 1888.
101

    Id. at 1888, 1891.
                              21
positions of every candidate and party on the ballot is not
reasonable.”102 Because the “indeterminate prohibition” was
not “capable of reasoned application,” the restriction “fail[ed]
even [the] forgiving test” for reasonableness in a nonpublic
forum.103

       Here, in contrast, there is no issue of an indeterminacy:
all public announcements are prohibited. Unlike Minnesota’s
law that required election judges across the state to individually
interpret and apply their own definition of “political,” the
City’s policy does not require the Sheriff’s Office to interpret
the content of the speaker’s message in order to determine if it
is allowed. Instead, the policy requires the Sheriff’s Office to
stop anyone who attempts to make an announcement to the
general public regarding the properties (or anything else for
that matter). The only discretion involved is determining
whether the person has a valid court order or bankruptcy
petition staying or postponing the sale, which is not the type of
determination that carries the “opportunity for abuse” or
creates a subjective, unworkable standard.104 The City’s no
comment policy is therefore “capable of reasoned
application.”105

       Porter alleges that Chew inconsistently enforced the
City’s policy, but as we address below, Chew’s purportedly
selective enforcement does not go towards the reasonableness
of the policy itself. Given the City’s “flexibility” to craft
reasonable limitations on speech that reserve the sheriff’s sale
for the intended purpose of conducting a public auction, the
City’s policy meets “this forgiving test.”106
                                   2. Viewpoint Neutrality
       Next, we disagree with the District Court’s finding that
the City’s policy prohibiting public comments during the


102

    Id. at 1889.
103
    Id. at 1888, 1891-92.
104
    
Mansky, 138 S. Ct. at 1891
. In fact, this is not a
discretionary decision at all. If a court has ordered the sale of
the property to be stayed or postponed, the Sheriff’s Office
must comply.
105

    Id. at 1892.
106

    Id. at 1885, 1888.
                               22
sheriff’s sale discriminated based on viewpoint.107 The District
Court reached its conclusion based on “testimony that the
organizers of the sheriff’s sale tolerated announcements,
suggesting that Chew’s implementation of the policy was
viewpoint-discriminatory.”108 Chew testified that whether he
allowed an announcement “depends on what [the speaker]
wanted to say” and that he was concerned with announcements
that “have a chilling effect on the sale itself.”109 The District
Court concluded that “Chew thus essentially conceded that the
policy, or at least his application of it, was not content-neutral,
and discriminated on the basis of . . . viewpoint.”110

        This District Court’s conclusion fails on two levels.
First, as explained above, Porter cannot establish municipal
liability under Monell absent a policy or custom that violates a
person’s constitutional rights. The City’s policy in this case is
clear and uncontested: no comments are allowed.111 That

107
    Porter, 
337 F. Supp. 3d 
at 552-53.
108

    Id. at 552 
(emphasis added).
109
    Ohio App. 500
. Chew testified that he did not allow
announcements that may interfere with a sale or decrease the
sale price. According to the City, this is not viewpoint
discriminatory since value-decreasing speech is not a
“viewpoint.” City Br. at 33-34; see also Oral Arg. Transcript
at 7, 12 (arguing that viewpoint discrimination refers to
targeting certain opinions or ideologies, whereas prohibiting
speech that discourages sales is an eminently reasonable
content-based distinction at an auction). Because we find that
the City’s official policy prohibited all announcements,
regardless of content or viewpoint, we need not delve into the
analytical distinction between content and viewpoint
discrimination.
110
    Porter, 
337 F. Supp. 3d 
at 553 (emphasis added).
111
    The District Court rightly found that “[n]umerous
witnesses for both Porter and [the City] confirmed the
existence of a policy ostensibly forbidding announcements at
sheriff’s sales.”